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Volume 25: Number 243

Fri, 04 Jul 2008

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Subjects Discussed In This Issue:
Message: 1
From: "Richard Wolpoe" <rabbirichwolpoe@gmail.com>
Date: Fri, 4 Jul 2008 00:07:46 -0400
Re: [Avodah] Halachic Texts: More Background

On Thu, Jul 3, 2008 at 12:39 PM, Micha Berger <micha@aishdas.org> wrote:

> On Thu, Jul 03, 2008 at 12:02:54AM -0400, Richard Wolpoe wrote:
> : But I am persisting on  insisting that he made them optional because the
> : Talmud was STILL new enough to go back to it. After the Rishonim were
> over,
> : that was no longer the case.
> Give me a rigorous definition of "new enough" that allows for ther Rambam
> and not the Gra.

I already did!. Shulchan Aruch Choshen Mishpat 25 wherein the mechabeir
insisted that to'eh bidvar mishneh included posqim.  {Be'er hagolah creits
this to Rambam, but the term had morphed the Rambam w/o any notation.  Why
not?] And then all the nos'ei keilim chimed in on how that should look [iow
which posqim?]  E.G. Sefer Me'ras einayyim states : Follow Rif UNLESS
Tosafos argues.  [pretty simlar to Rosh and Mordechai btw]

I have not proof that Hatimas Hashulchan Aruch is any less authoritative
than Hatimas Hatalmud, except that meharshal/Bach/Gra etc. resisted.  But
guess what! With 350 nos'ei Keilim [or more} it seems that the VAST
masjority nimnu v'gamru.

Se YD 101 for an example of BY using "nimnu v'gamru"

Also see Heramann Stracks' quote that the "MAIN TASK" for posqim today is to
read the codes and trace them back to the Talmud.  IOW, the Talmud isnow
jsut  background for the p'saq, not the foreground.  I posit this morphed
from the early Rishonim to the end of Rishonim and I can actually quote you
sources to this effect.

> The Gra argued that he only changed pesaqim that were against halakhah
> (as he understood it) in favor of those that are not.

Guess what? so does every body else. I argue that bachurim not wearing a
Tallis Gadol  is against p'saq, and the Darchei Moshe, Ba'er Heitev, and the
Mishna Brura concur. As well as all Sepharadim and all yekkes.  It is
interesting that the Ga overtunred many Ashkenazic models in favor of
Sephardic alternatives but never pushed for Tallis Gadol - at least AFAIK

> : IOW you could be TRUE to the Rambam in 1205 and say we can still go back
> to
> : Talmud and then in 1564 STILL be True to the Rambmaa and lsay this is no
> : longer a viable option to ignore prominent Posqim
> The Gra doesn't ignore prominent poseqim. He ignores the kehillah's
> precedent as to which prominent poseiq to follow. It's an anti-mimetic
> thing,

Or against established precedent. What if the Gra had said that Rabbeinu
Tams's Tefilin was THE correct Tefilllin?   One Sephardic Mekubbal told me
that one MUST wear Rabbeinu Tam's Tefillin on this basis.

To Paraphrase Rabbeinu Tam [on another issue] if you don't accept Halachic
precedent, then why accept the Bavli as authoritative. it is after all the
ultimate statement of precedent. IOW the fact that we take the Bavli as
authoritative is  heim amru.   if they set aside a Bavli here and there - it
is a case of heim amru v'heim amru.

I once silenced a very vocal Talmudic fundmentalist by showing his argumetns
were circular in nature - he even conceded it to my surprise.

> and probably a product of the collapse of the ghetto's culture
> during his times.

Nah.  Gra dies 1797, Napoleon invades Russian Emptire in  1812 The ghettoes
only BEGAN collapsing 15 years after Gra's passing.

Gra knew his pesakkim were private.  He never even tried to popularize
them.  Those who reached back to the GRA to create a new Halachic norm
really wer quite radical to abandon Minhag Avos.

This can be shown by the few communites that resisted  so-called Nusach
Sepharad amongst hassidim [e.g. Wien  oberlanders, etc.} who  claime Minhag
Avos trumped.

Gra told his Talmiddim who made aliya to follow thr local Minhag. they did
not. They instituted the Gra as the norm.  Until about 1960-1970 no
signifcant number of American Misnagdim omitted Tefillin on Hullo Shel

What collapses was Minhag Avos in Eastern Europe except for some Litvaks.
As pointed out by Chayei Adam, et. al. Gra was not a big influence in
Lithuanian Minhag for a quite a while after his passing.  But with Nsuach
Hatefillah in chaos, certain communities gave in.

Let's face it, If any one else said about Halachah what the Gra said.[ you
fill in the blanks]
See kaf hachayyim on 3 vs. 2 matzos for an example of what I mean.

Kol Tuv / Best Regards,
see: http://nishmablog.blogspot.com/
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Message: 2
From: "Richard Wolpoe" <rabbirichwolpoe@gmail.com>
Date: Fri, 4 Jul 2008 00:44:25 -0400
Re: [Avodah] Feeling and Judaism

On Tue, Jul 1, 2008 at 4:52 PM, Micha Berger <micha@aishdas.org> wrote:

> RMBreuer could be read as saying that Judaism wants feeling harnessed
> by intellect, and thus "is not satisfied with feeling" becayse "only
> cognitive reason ... can fortify against life's trials and temptations".
> Tir'u baTov!
> -Micha

I heard a drash like this
Those who put their feelings [lev] ahead of their brains [mo'ach] are a
Those who put there head [mo'ach} ahdead of their feelings [lev] are a

L'havdil FWIW, the late Albert Ellis {an anti-religious briliant eccentric]
who advocated a totally rational way of life - eventually  evolved away from
af PURE rationalism into Rational-Emotive Therapy.

Although ellis might deny it, he actually used Talmudic style dialectic to
argue with oneself out of irrational thinking, just the way the Talmud
dialectically arrives at a conclusion.

Once the proper conclusion is reached, then those emotions that support that
conclusion are "rational emotions"

Benidon didan Micha aisi  is making the same point.  Emotions must serve the
correct  conclusions arrived at via a clear mind.

BTW, that is why  AISI the ikkar aziom for doing mitzvos is that Hashem took
us out of Egypt to be HIS slaves, and rejecting the Torah would "revert us
back" so to speak to avdei Par'oh. IOW Yetzi'as mitzaryim is imho a more
fundamental axiom  in many ways than Hashem As creator, and this explains
the First Dibra as the main Ikkar.

Kol Tuv / Best Regards,
see: http://nishmablog.blogspot.com/
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Message: 3
From: "Richard Wolpoe" <rabbirichwolpoe@gmail.com>
Date: Fri, 4 Jul 2008 00:57:50 -0400
Re: [Avodah] quoting sources

On Mon, Jun 23, 2008 at 5:47 AM, Eli Turkel <eliturkel@gmail.com> wrote:

> <<Remember Rambam, SA and Kitzur SA all cite no sources.
> Tur does at times.>>
> A little unfair as R. Karo relies on his commentary Bet Yosef
> There are some discrepancies but they are minor
> --
> Eli Turkel

My point is NOT a critique of RY Karo who relies upon the BY
My critique is with the phenomenon that the SA was enshrined as THE Halachic
work despite this shortcoming.

That is a bit confusing so let me state this:
Printers SHOULD have pritned Tur/BY and then the SA/Rema on the bottom of
the siman or some simliar device.

Silly? See the Traditional [not the new edition!] of the Toras habbayis.
tTheTB hakatzar is on the SAME PAGE as the TB ho'orcuh!

EVERY early edition of the SA said SA on Tur Orach Haim, on Tur YD etc. But
the Tur and BY are missing. True the  Be'er hagolah made up for this deficit
but what bothers me is that it seems that people did not WANT a sefer that
had the sources!   Think about how popular the Rambam/SA/KSA are compared to
the BY or the Darchei Moshe!

What is also SOMETIMES the case the SA differs from the BY. This is even
more baffling
E.G. my debate with r. Zev Sero re: fish and milk.  Clearly in the
BY&clearly omitted from SA. Also see the order of Talllis & Tefillin
BY: Tadi v'sheino Tadir...
SA: ma'alion bekodesh...

As a teacher, it is really difficullt to hve to point these things out.

Kol Tuv / Best Regards,
see: http://nishmablog.blogspot.com/
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Message: 4
From: Arie Folger <afolger@aishdas.org>
Date: Fri, 4 Jul 2008 09:14:44 +0200
Re: [Avodah] the cohen gadol and marriage to a pubescent girl

REPhLM wrote:
> The second aspect, harm or not: as far as I know, current psychology
> assumes that, bar exceptions, sexual relations with a 12-year old are
> harmful. I don't know enough about the matter to have an opinion, other
> than that intercourse between a 12-year old and a 40-50-year old isn't a
> comforting concept. I'm aware that this is probably a result of growing up
> in "Western society". I suppose sexual relations without a stable emotional
> background aren't healthy at any age, adn this kind of background is less
> there, statistically, among 12-year olds.

I once asked r. David Pelcovitz about that in YU, when we were taking a 
counseling course on the topic of abuse. According to him, this is entirely 
societal. He mentioned some primitive cultures where the coming of age 
ceremony consisted of boys performing publically a ma'aseh meguneh on their 
fathers, and according to antropologists dealing with these cultures, the 
boys weren't harmed in any way.

A large part of children's rights we hold nowadays dear, flow from a desire to 
let children be children, something which in the past was not a given; it is 
a luxury flowing forth from our higher average life expectancy and greater 
material prosperity.

However, generally, we do consider a large age gap problematic, which is why 
the gemara states we would discourage yibum in such cases.
Arie Folger

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Message: 5
From: "Jonathan Baker" <thanbo@gmail.com>
Date: Fri, 4 Jul 2008 10:34:23 -0400
[Avodah] TuM vs TIDE

From areivim, per RMi's request:

On Mon, Jun 30, 2008 at 11:32 PM, Harry Maryles <hmaryles@yahoo.com> wrote:
> --- On Mon, 6/30/08, Micha Berger <micha@aishdas.org> wrote:

>>>>>>>>>>>1- Halachic Man tells me that I am to relate to halakhah as a
>>>>>>>>>>> creative
> partnership between G-d and man. I'm not a poseiq. And my LOR isn't
> R' Chaim Brisker, creatively inventing sevaros with a frequency that it
> typifies his relationship with halakhah. It's a relationship to halakhah
> that RYBS had, but not part of the experience of the community.<<<<<<<<<<<

> In my view Halakhic Man is the quitessential Jew. He lives the ideal that
> God desires of him. Man who is human may at times fall short of that goal
> but in theroy he should have the intellectual capacity to synthesize the
> corporeal with with spiritual.  But that does not free him from his task of
> trying to see all of nature and existence via the medium of Halacha.

Is the ideal purely defined for you in terms of intellect?  Clearly it
was for the hypothetical Halachic Man, who may or may not have been R'
Moshe Soloveitchik zt"l, but was it the idea for RYBS?  Should it be
the ideal for anyone else beyond an uber-intellectual?

Remember, Rachmana liba ba'i.  Yes, that is framed in mitzvah
observance, and for men, Torah study, but those become a tool for
shaping the emotions and beliefs.  Even Rambam, promoter of intellect,
didn't ignore the presence of, and influence of, emotions and desires.
 The emotions and desires should be channeled towards God, not simply
denied.  The flaw in the homo religiosus is that his yearning is
unformed.  Halachic Man channels that yearning in a productive

jon baker | blog: http://thanbook.blogspot.com
thanbo@gmail.com | web: http://www.panix.com/~jjbaker

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Message: 6
From: Arie Folger <afolger@aishdas.org>
Date: Fri, 4 Jul 2008 09:08:06 +0200
Re: [Avodah] T'uM

RMB wrote, quoting RMBroyde:
> > Assuming, for example, that the halakhic entity approach were correct
> > across the board, it would enable the use of a corporate form to resolve
> > countless Jewish law difficulties. The dilemma is that it might resolve
> > too many problems. It would theoretically enable Boruch the Baker
> > to form a corporation of which he is the sole shareholder, director,
> > and officer. It would also allow the corporation not only to keep dough
> > throughout Passover, but, if he hires non-Jewish bakers and salespersons,
> > to sell dough throughout Passover as well as on the Sabbath and other
> > Jewish holidays. Although it is possible that secular law creates the
> > opportunity to use a corporation to circumvent Jewish law, this is an
> > unsettling conclusion.
> Why is that more unsettling than thinking he could borrow money and not
> pay it back? Both are miSinai...

Disclaimer: I know little about corporations in halakhah.

I would tend to see corporate law as a taqanat hatzibbur: in order to spur 
investment and business development, debtor protection laws are enacted. 
There is data comparing jurisdictions and their economic output that shows 
the effectiveness of such a policy to be generally positive.

So, a secular entity, the 7 tovei ha'ir, or the national government, can enact 
laws whose purpose is the furthering of economic well being. However, if the 
purpose would be the circumvention of ritual obligations, I'd be inclined to 
say (a) it isn't letovat hatzibbur, and (b) it doesn't work. It doesn't work, 
because, I believe taht even with an LLC, the owner remains the owner, it is 
just that the government decreed that such a corporation limits financial 
liability, in order to promote investment and business development.

Hefqer beit din hefqer, according to those who hold it to be the prerogative 
of tovei ha'ir, is also relevant here.
Arie Folger

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Message: 7
From: "Zackary Sholem Berger" <zackarysholemberger@gmail.com>
Date: Fri, 4 Jul 2008 13:00:04 -0400
[Avodah] the cohen gadol and marriage to a pubescent girl

Re historical changes in the age of menarche, see this

Some quotes:

Ever since the publication of the first textbook on human growth by Johann
Augustin Stoeller in 1729, temporal changes (or secular trends) in growth
and pubertal maturation have been observed throughout the world. Data
covering the longest time span are often reported from European populations.
For example, in Norway and Denmark the age at menarche has fallen rapidly
since the 19th century, by up to 12 months per decade. ... These secular
trends are influenced by background ethnic, geographical and socio-economic
factors, and clearly nutritional changes have an important role as reflected
by positive correlations between age at puberty onset or age at menarche and
childhood body size. ... The confirmation of an estimated advance in the age
at menarche of 6-12 months per 100 years will require a long-term
perspective [by] current investigators ...
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Message: 8
From: "Rich, Joel" <JRich@sibson.com>
Date: Fri, 4 Jul 2008 14:04:18 -0400
Re: [Avodah] Halachic Texts: More Background

So let's go back further. Who decided on general klalim of psak(e.g. R'
Judah versus Rabbi Meir and Rabbi Shimon).  Why weren't these on a case
by case basis?
Joel Rich
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Message: 9
From: "Chana Luntz" <chana@kolsassoon.org.uk>
Date: Fri, 4 Jul 2008 20:19:22 +0100
Re: [Avodah] T'uM

RMB wrotes:

> > This is really where my head was, let's tell a different story...
> > 
> > Moshe and his son-in-law Baruch are in the shirt business. They 
> > commission shirts to be made in China and sell to stores. 
> One of their 
> > customers goes under, while owing him $75,000. M&B Shirts 
> is a small 
> > shop, and will really be stressed by the loss. Barukh 
> learns in shul 
> > that Avi, the owner of the store, had known for a while that it was 
> > likely he would have to close, and continued making orders 
> from them. 
> > Wouldn't they be angry about not getting as much forewarning as the 
> > store could have risked?

And RZS then wrote:
> But did Avi have the right to give such warning?  Presumably 
> at that point he still thought he had a chance of turning his 
> business around.

Most of this is, by the way, governed by secular law.  I know you are
talking about an LLC and hence American law, but my knowledge of
American law is not that strong, so I will just give you some examples
under English law.

Under English law, for example, there is a concept of wrongful trading -
under which a company director can be sued for continuing to trade when
he should not have done

To give you a flavour of that, here is a paragraph from a nice article
that can be found at:
tyofcompanydirectors.doc -

"One of the primary roles of a liquidator of an insolvent company is to
augment the asset pool that is available for distribution to the
creditors of the company, so as to ensure that the creditors, who will
not of course obtain full payment for the credit that they have
extended, receive as large a return as possible on the debts that are
owed to them by the company.  One action which liquidators might
contemplate initiating is an action against the directors of the company
personally on the basis that they engaged in wrongful trading prior to
the liquidation of the company.  This action would be initiated pursuant
to s.214 of the Insolvency Act 1986.  Section 214 provides, in effect,
that the liquidator of a company that is in insolvent liquidation
(effectively the situation where a company's assets are not sufficient
to pay its debts at the time of liquidation ) may commence proceedings
against the company's directors, and these proceedings may ask that the
directors be ordered to make such contribution to the company's assets
as the court thinks proper.   Directors may only be liable where at some
time before the commencement of the winding up of the company, they knew
or ought to have concluded that there was no reasonable prospect that
the company would avoid going into insolvent liquidation."

There is also the concept of a "unfair preference" .To be an unfair
preference, the. payment must put the creditor receiving it in a more
favourable position than other unsecured creditors.  This is illegal in
most countries (and in general the benefit can be clawed back for the
estate and the benefit of the creditors as a whole).

There is, I believe, in most countries, case law on what is proper
behaviour for directors in insolvency and near insolvency circumstnaces
and quite detailed regulation of director's duties.  And I confess my
instinct is with RZS on this, that to warn a frum Jew over and above
anybody else would be a violation of dina d'malchusa dina and, if it
came out, a chillul HaShem.  Whether under the law Avi was required to
cease trading earlier than he did and hence not put M&B into difficulty,
would be, inter alia, a judgement for the secular courts, as to whether
his judgement not to do so was reasonable.

Note also that in many countries provision is made under the law to give
small creditors some sort of first right to at least at a portion of the
assets.  In those countries where their isn't such provision, the
decision has been made by the secular authorities that other
considerations are more important (entreprenarial activity, encouraging
lending or whatever).  These decisions are not straightforward, and
different countries have allocated their priorities in different ways.
However there is a fair amount of evidence that the level of
restrictiveness on insolvency can operates to dampen commercial activity
in general, so that a balance has to be struck.

> Because dinei momonos depend on the intentions of the people 
> involved; if they're doing business on the basis of secular 
> law, or merchant law, then that becomes the din.  If they all 
> agree that the corporation exists, then it does. 

This is less clear, however.

Firstly, it is hard to think of case that more closely matches that of
the gemora definition of asmachta than of people lending to or doing
business with a limited corporation in circumstances where what they see
is the owner of a business.  People (especially small time individuals)
don't believe the person they are going to lend to or do business with
is going to go under and they don't really think about the limited
liability nature of the person with whom they are doing business in a
transaction of the kind that RMB is describing.  Secular law may make
gambling completely legal, but it does not necessarily disallow the
gemora provision relating to asmachta and make participation theft.

> Pesach, though, doesn't depend on what anyone thinks; if the 
> corporation is really just Boruch, pretending otherwise 
> doesn't change the din.

In addition, the concept of a limited liability corporation depends on
it having legal personality and existence.  If the halacha really does
not recognise that person as a legal person, the fact that the secular
law does would not necessarily seem to get the underlying "mind" off the
hook. There is a concept in secular law of "piercing the corporate veil"
where in certain circumstances (usually fraud), the courts will look
beneath the corporate entity to the directors behind it.  It does not
seem to me to be so straightforward that the halacha, while recognising
the customs of business between parties, will necessarily take the leap
and recognise the concept of independent legal personality that
underpins a corporation, and therefore would not require a piercing of
the corporate veil in all cases.

It is said (I don't know if it is an urban myth) about the Reichmans
that when they went under, they took advantage of the limited liability
provisions to allow them to start over again and rebuild capital, but at
that point they went back and made sure that all of their old creditors
we paid in full (under secular law certainly lifnin mishuras hadin).  It
is not clear to me, however, whether such behaviour is lifnin meshuras
hadin in halacha a well, or perhaps it is in fact mandated by halacha
based upon the above - although presumably a deferral of payment when
payment is not possible is permitted halachically (ie to take advantage
of the insolvency provisions to start anew as the Reichmans reputedly
> -- 
> Zev Sero               Something has gone seriously awry with 
> this Court's
> zev@sero.name          interpretation of the Constitution.

Shabbat Shalom



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