Avodah Mailing List

Volume 23: Number 19

Wed, 14 Feb 2007

• 1. Copyright redux (JRich@Segalco.com)
• 2. Re: Social responsibility, halacha and psak (kennethgmiller@juno.com)
• 3. Re: Copyright redux (Jacob Farkas)
• 4. Re: Copyright redux (Jacob Farkas)
• 5. Re: Social responsibility, halacha and psak (Moshe Yehuda Gluck)
• 6. Re: Talmud Torah (Micha Berger)
• 7. Re: RYBS TEEM Musings (Micha Berger)
• 8. Re: Social responsibility, halacha and psak (Micha Berger)
• 9. Re: Tzinius and the ILG (Shmuel Weidberg)
• 10. Social responsibility, halacha and psak (Gershon Dubin)
• 11. Re: early bird specials and ribbis (David Riceman)
• 12. ona'ah and on-line discounters (David Riceman)
• 13. Re: early bird specials and ribbis (Zev Sero)
• 14. Re: Copyright redux (Michael Kopinsky)
• 15. Re: Moshe Rabbenu's Punishment Amalek (Michael Kopinsky)
• 16. Re: ona'ah and on-line discounters (Michael Kopinsky)
• 17. ten tribes (Ilana Sober)

First of all, many poyskim hold that there is no Dina deMalchusa in EY. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

so they would say that it is a hefker place where kol hayshar beinav yaaseh (eg traffic laws, no generally accepted rules of commerce etc.)?Ktjoel rich

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R' Steve Brizel
> wonders why one cannot simply go for the branches of medicine
> that offer the best of both worlds, namly a superb medical
> training without having to  be Mchallel Shabbos or entering
> into the huge safek of Hutra/Dchuyah.

Such as what? I cannot imagine any such branch. Any medical care at 
all always involves the possibility of complications afterward, and 
such complications could certainly be life-threatening. Further, 
during one's medical education, one is exposed to all sorts of types 
of medical care. What sort of "superb medical training" is RSB 
referring to, which has no chance of "having to  be Mchallel Shabbos 
or entering into the huge safek of Hutra/Dchuyah."

Akiva Miller

R' Daniel Israel wrote:
> I don't see it, though.  Correct me if I'm wrong, but the issue
> here is ye'ush, no?  In the zuto shel yam case, first I don't
> expect anyone to find the item in the first place, and even if they
> do, I don't think there is any way that I could find out in order
> to recover it.  So I have ye'ush.  

Zuto Shel Yam is a Mahloqes Rishonim, some say it is because of Yiush, 
others say it is a Gezeiras HaKasuv, that the Torah was mafqir the 
object automatically. Even in a model of Yiush, having no tangible 
control and being unable to recover said object is the very definition 
of Yiush.

> But with internet file sharing,
> I absolutely expect people to "find" the item (that's the whole
> point), and furthermore, I can very clearly declare that I am
> makpid.

"Being maqpid" is a meaningless term in its own. If anything it can be 
used as a description of a bitter person who has no other recourse but 
to be sour about the situation. Having an ability to be Toveiah another 
in Beis Din or Civil Court is a better demonstration of ba'alus.

> In other words, I think there is a very great difference
> between ye'ush because I could never identify who has taken my
> item, and the case where it is just not cost effective to try to
> recover $2.50 from 100,000 individuals.  In the latter case I may
> not bother, but can we really call that ye'ush?  If I require
> payment with the expectation that the %1 of people who are careful
> will pay me, isn't everyone who doesn't do so a ganef?

I don't see a difference. Yiush can be for many different reasons. Being 
deprived of a realistic option of chasing someone down is one form of 
"giving up hope."

--Jacob Farkas

A & C Walters wrote:
> Being that I am in EY, and most things are in the USA, is a person 
> meshubed to another country's laws? First of all, many poyskim hold that 
> there is no Dina deMalchusa in EY. But let's say I'm in England, and 
> something is ossur al pi chok of the USA, why am I, as an Englishman 
> living in England mushubed to the laws of the USA, for example?
>  > >
>  > > I don't think that Zuto Shel Yam trumps Dina deMalkhusa though, which
>  > > clearly takes issue with filesharing.
>  > >
--------


similar in the US as in other countries. Whether Dina DeMalkhusa applies
in EY is outside of the scope of my argument, but is an interesting
topic on its own.

I do find it difficult to apply laws of Hasagos Gevul or other classic 
Halakhic copyright models to digital information, and feel that any 
Halakhic objection should be tied to Dina DeMalkhusa, staying within the 
parameters of current copyright laws. There is no practical Nafqa Minah 
whether file sharing is miTa'am Geneivah or for any other reason in the 
US, as Dina DeMalkhusa is binding.

--Jacob Farkas

*R' Steve Brizel
*> wonders why one cannot simply go for the branches of medicine
*> that offer the best of both worlds, namly a superb medical
*> training without having to  be Mchallel Shabbos or entering
*> into the huge safek of Hutra/Dchuyah.

R' Akiva Miller:
*Such as what? I cannot imagine any such branch. Any medical care at
*all always involves the possibility of complications afterward, and
*such complications could certainly be life-threatening. 

Podiatry? Dermatology? Cosmetic surgery?

KT,
MYG

On Fri, February 9, 2007 5:15 am, Chana Luntz wrote:
: I am confused. There are indeed two lists in the Mishna in Peah, but
: they come one right after the other (ie eilu dvarim is there as well, in
: the versions of the Mishna I have)...

I can't speak to your versions, but the second list is woven from the gemara
in Shabbos and a beraisa. It is because it's woven that the Ashkenazi and
Sepharadi nusachos differ; Ashkenazim include hachnasas kallah, levayas
hameis, and v'iyun tefillah, the Rambam and my Sepharadi siddur do not.

There is a machloqes whether "veha'arev" is a second of three birchos haTorah,
or if it's the body of the first berakhah, a continuation of "la'asoq bedivrei
Torah. On the weight of the first opinion, we make sure to learn from all
three chalaqim of talmud Torah -- miqra, mishnah and gemara. The second eilu
devarim is the gemara. (Alternatively, the two berakhos correspond to TSBK and
TSBP.)

The Bartenura holds that "ein lahem shiur" refers to a lack of minimum shi'ur
deOraisa. Which would mean that if talmud Torah has a minimum shi'ur, the
Bartenura would hold it's deRabbanan.

I agree with the general direction of RnCL's position (and open questions),
and would just comment on a detail.

:> And on Thu, Jan 25, 2007 at 12:30:43AM -0000, RnCL wrote:
:>: Well the halachic sources when quoting the reference phrase
:>: it slightly differently and add a critical word "shikul",

Including Tosafos on Shabbos.

:>:                                                          which does
:>: rather suggest we are talking about heavenly scales rather than earthly
:>: doings - eg the language of the Shulchan Aruch (Yoreh Deah siman 246 si'if
:>: 18) "talmud torah shikul kneged kol hamitzvos" ...

:> But I thought the mishnah said I can't know secharan shel
:> mitzvos, and thus can't choose a chamurah over a qulah.

: It is a good kasha, although one could answer that maybe the exception
: proves the rule.  Or, as I implicitly suggested at the end of my
: analysis last time, maybe the idea is that it is supposed to weigh on
: the mind while you are performing other mitzvos (see what I said there
: in comparision with kibud av).

Side note: "The exception which proves the rule" only works if the exception
was explicitly made. Then one can assume the rule holds in general, for
otherwise why would anyone bother making a statement about this case? So it
doesn't quite work here.

RYBS writes on "hadran" that "lo sisnasei minach" refers to the fact that even
if I'm not consciously thinking about the Torah learned, it is still within
me, part of me.

Dr Nathan Birnbaum expresses this idea more forcefully in HaOlim's motto of
"Da'as, Rachamim, Tif'eres" as explained in Am Hashem p. 109 -- which I do not
have access to and am relying on RYGB's summary. Tif'eres is the total
transformation of the self through the Torah learned. So that one's entire
life and culture is informed by Torah even to the extent of having
particularly Jewish music and art.

There was a talmid in Slabodka who made a siyum on shas. The Alter heard
something he considered undue boasting about having gone through shas. He
retorted, "It's not how many times you go through sha"s, it's how many times
sha"s goes through you!" Tif'eres.

The Zohar says something similar about Chanokh's departure from the world. The
pasuq (Ber 5:24) reads "Vayis-haleikh Chanokh es haE-lokim ve'einenu, ki
laqakh oso E-lokim." The Zohar describes this leqikhah as an ascent similar to
Eliyahu haNavi's. Chanokh was a shoemaker. When sowing the soles to the
uppers, with each stitch he unified the upper and lower worlds. And so, he
completed his life and traversed that unity without death.

Chanokh didn't have to be sitting in front of a seifer lehagos bo yomam valylah.

I would suggest that perhaps vehagisa isn't veshinanta or velamadta. Rather,
it's saying that any thinking you do, whether before a seifer or not, is
different because lo sisnasei minach.

This is similar to RnCL's "weigh on your mind", but I think it goes much
further than her intent. (As far as I am guessing at that intent.)

Tir'u baTov!
-mi

-- 
Micha Berger             Spirituality is like a bird: if you tighten
micha@aishdas.org        your grip on it, it chokes; slacken your grip,
http://www.aishdas.org   and it flies away.
Fax: (270) 514-1507                            - Rav Yisrael Salanter

On Fri, February 9, 2007 12:03 pm, R Yosef Gavriel Bechhofer wrote:
:> Self awareness is the flipside of bechirah. One can only consciously
:> choose if one is conscious of the process of choosing. And so, RYBS's
:> position as I understood it isn't that far from the Meshekh Chokhmah
:> (although not the same), who identifies tzelem E-lokim with bechirah.

: Do we know that dolphins are not aware of themselves, their biology and
: their drives?

That's not my given, that's what I'm trying to conclude.

1- The Meshech Chokhmah identifies tzelem E-lokim with bechirah. So animals do
not have bechirah (leshitaso).

2- Bechirah and metacognizance (awareness of one's awareness) are flipsides of
eachother. It is because we take our thoughts themselves in as "inputs" that
we can respond and modify them.

I therefore concluded that, according to RMSKD (R' Meir Simchah haKohein
miDvinsk, as my grandfather a"h refered to him in a voice filled with awe and
pride), animals could not be metacognizant.

Which is why I thought that RYBS's identifying the tzelem E-lokim with a
unique ability to be aware of one's own condition was not far from RMSKD's
shitah.

:> : "Natural law" sounds to me like Rousseau. Is RYBS suggesting that  human
:> : beings are "naturally" ethical?

:> I believe so... That HQBH created us with a yeitzer hatov.

: Yes, but he says: "Firstly, in order to experience the ethical norm,
: external divine intervention is necessary. Only through the divine
: command can man transcend his natural biological self and experience the
: ethical...." etc.
: I don't see a YhT as distinct from kiyum mitzvos here.

Of course not. This is the author of Ish haHalakhah. As the students of
Vilozhin told R' Itzele Blazer when they bodily evicted him from the beis
medrash, "De bester mussar iz a blatt gemara." Your world view has a focus on
an ethic beyond and underlying halakhah. RYBS's does not.

RYBS's yeitzer hatov is in the ability to obey (and help create) halakhah. And
halachic life and the ultimate ethical life are identical.

Tir'u baTov!
-mi

-- 
Micha Berger             Spirituality is like a bird: if you tighten
micha@aishdas.org        your grip on it, it chokes; slacken your grip,
http://www.aishdas.org   and it flies away.
Fax: (270) 514-1507                            - Rav Yisrael Salanter

(FWIW, my brother-in-law went into anesthesiology so as to have some chance of
well defined hours.)

I half recall an interesting machloqes to the question of whether someone
should trade their on time with a doctor who is mechallel Shabbos or not.

R' Chaim Brisker suggests that hutrah vs dechuyah only applies to someone who
wouldn't otherwise be mechalel Shabbos. Based on this shitah, it would be
wrong to trade your on call hours with a mechalel Shabbos.

The other tzad would be to say that it's better he be busy in something that
is arguably hutrah/dechuyah than unmitigated chilul Shabbos, and therefore
such a trade was advisable.

The half I forget is which sifrei shu"t I saw these in.

Tir'u baTov!
-mi

-- 
Micha Berger             Spirituality is like a bird: if you tighten
micha@aishdas.org        your grip on it, it chokes; slacken your grip,
http://www.aishdas.org   and it flies away.
Fax: (270) 514-1507                            - Rav Yisrael Salanter

On 2/13/07, Daniel Israel <dmi1@hushmail.com> wrote:

> Just to clarify: do you
> (a) deny that there is any mistreatment of workers,
> (b) assert that although there is mistreatment, it is so clearly
> outweighed by other factors that the ethical situation becomes obvious,
> (c) deny that such mistreatment is an halachic/ethical issue?
>
> Or something else I'm missing?

What do you consider mistreatment? I know somebody who is a resident
(doctor) and is so overworked and has such crazy hours that that the
hourly rate is barely five dollars. Does that mean that you will
boycott hospitals as a result? I understand that it is standard
practice in hospitals. And lawfirms aren't better either. And
supposedly computer companies are sweatshops as well?

Is that inherently mistreatment? Perhaps. But why boycott third world
sweatshops when you don't boycott firstworld sweatshops? And if there
is worse mistreatment than that, then that is a separate problem. It
is not a problem with "sweatshops" per se.

The truth is, it is the same with slavery. Although the gemara
determines that it is a zechus for a slave to be freed. The gemara
does not consider it a slam dunk. The main reason why slavery was
condemned so strongly is because slaves were so severely mistreated
and had no rights whatsoever. But in a just society living by Torah
rules slavery would be worse than being free, but would not be the
great injustice that it is made out to be.

Regards,
Shmuel

From: Zeliglaw@aol.com

Obviously, one can raise the issue of Hatzalah EMTS and what they are
doing but  WADR, Hatzalah EMTs respond to instances of Pikuach Nefesh or
at least a safek  thereof, with Poskim ( RSZA and RMF) offering different
views as to what to do  once their response is over, as opposed to
serving on-call where one can argue  that much that occurs does not
amount to Pikuach efesh, 
unless one assumes that  Shabbos is completely Hutra. >>

Even if one says hutra, that does not include non-pikuach nefesh.  It
only
allows you to enter voluntarily into a (safek) pikuach nefesh.

Gershon
gershon.dubin@juno.com

I wanted to add one more clarification.  RZS speaks about loan or early 
payment as if they were mutually exclusive options.  The easiest way to 
understand these halachos is that an early payment is a loan which lasts 
until payment is due, and that's why giving a discount for an early payment 
is assur.

David Riceman 

Books, and many other commodities, now have a "label" price and a "street" 
price which are different, due to the common presence of discounters.  What 
does that due to the din of ona'ah? It would be perverse to say that every 
bookseller who prints a price on his book is guilty of ona'ah.  On the other 
hand, it seems invariably true that a person who looks hard can find a new 
copy for less than the cover price.

David Riceman 

David Riceman wrote:
> I wanted to add one more clarification.  RZS speaks about loan or early 
> payment as if they were mutually exclusive options.  The easiest way to 
> understand these halachos is that an early payment is a loan which lasts 
> until payment is due, and that's why giving a discount for an early 
> payment is assur.

Except that that's clearly not true.  Giving a discounted wage advance
to a future employee is only forbidden because it *looks* like a loan,
not because it is one.  Giving such an advance to a current employee
involves exactly the same transaction -- he's not legally entitled to
the money, he hasn't performed the work for which it's paying, and he
isn't legally obligated *ever* to perform that work -- and yet it's
permitted because it doesn't *look* like a loan.

-- 
Zev Sero               Something has gone seriously awry with this Court's
zev@sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas

On 2/13/07, JRich@segalco.com <JRich@segalco.com> wrote:
> First of all, many poyskim hold that there is no Dina deMalchusa in EY.
> !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
>
> so they would say that it is a hefker place where kol hayshar beinav yaaseh
> (eg traffic laws, no generally accepted rules of commerce etc.)?Ktjoel rich

Like it or not, this goes way back.  The Ran in Nedarim (sorry, don't know
where) says that it doesn't apply in EY.  In other countries, they have a
"migo" that since they could just kick you out of the country, they can
take your money.  But in EY, since they don't have the right to kick you
out, they don't have the right to take your money.  (Taking money=taxes
being at least the primary application of DDD.)

From a societal perspective it's difficult to say b'zman hazeh, but
halachically, I don't know.

On 2/13/07, Meir Rabi <meirabi@optusnet.com.au> wrote:
> Moshe Rabbenu was punished, became weak and had to sit down and have his
> arms supported because he had delegated the battle to Yehoshua. What should
> he have done? The event provided BNY with a remarkable illustration of the
> power of Tefillah. Was that to be substituted for MR leading the Jews in
> war?
What is your source for this understanding? (that the punishment was
because he delegated)

On 2/14/07, David Riceman <driceman@worldnet.att.net> wrote:
> Books, and many other commodities, now have a "label" price and a "street"
> price which are different, due to the common presence of discounters.  What
> does that due to the din of ona'ah? It would be perverse to say that every
> bookseller who prints a price on his book is guilty of ona'ah.  On the other
> hand, it seems invariably true that a person who looks hard can find a new
> copy for less than the cover price.

You seem to be taking for granted (and I agree with this, but would like
to see it in print) that the price as far as ona'ah is concerned is the
street price, and not the label price.  The question of whether it is
muttar to write something on the book to make it appear to be worth more
than it actually is, is lechorah the din in the mishna at the end of
Hazahav (BM 60a at the bottom):

"Ein mefarchesim lo es haadam v'lo es habeheima v'lo es hakeilim."

See the gemara on 60b explaining this mishna, and/or the Rambam Mechira
18:1-4.  From the lashon of the Rambam at the end of Halacha 2 it is
perhaps mashma that he is only mattir making new things look as good as
they really are, not better than they actually are.  If you understand the
Rambam this way, it would therefore be assur to write the label price on
the book.

(What about not on the book?  From the Rambam at the end of Halacha 1
"V'afilu lignov da'as habrios b'dvarim assur" it seems that it doesn't
make a difference if it's on the cheifetz itself or not.  And I'm sure
that when the Rambam says d'varim he means unspoken words as well.)

Incidentally, for the major Jewish booksellers (=Feldheim & Artscroll)
this lechorah is not a problem, because the street price on them
is (almost) universally the label price less 10%, which is less than
shtus, and thus muttar. (Except according to the Ramban that I quoted here
last time that says that any ona'ah is assur, even less than shtus, and
even karka, but I don't think any poskim will be chosheish to that
Ramban (at least, I don't think I would, were I ra'uy l'hora'ah) since it
requires "lav-davka"-ing numerous gemaras throughout hazahav.)

(My tzad safeik here is that perhaps geneivas da'as is different from
ona'ah, and will be assur b'pachus mishtus, even according to the other
poskim.)

The Tanach refers to Malchut Yisrael as aseret hashevatim. Which ten tribes?
It seems to me that there are only nine tribes north of Binyamin: Dan,
Naftali, Asher, Zevulun, Yissachar, Ephraim, Menashe, Gad, Reuven. Shimon
was in the southern part of Yehuda, not really an independent nachala. But
how could they have been part of Malchut Yisrael without any geographic
continuity?

- Ilana



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