Avodah Mailing List

Volume 32: Number 57

Sun, 30 Mar 2014

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Subjects Discussed In This Issue:
Message: 1
From: "Kenneth Miller" <kennethgmil...@juno.com>
Date: Fri, 28 Mar 2014 14:16:22 GMT
Re: [Avodah] Rav Elya Lopian: tefillin and radio

I wrote:
> But the other side wants to cite Rav Chaim Brisker: "Nebach an
> apikores is still an apikores."

but R' Zev Sero pointed out an opposing view:
> Even the Raavad, who holds that "nebach an apikores is not an
> apikores", ...

I'm reaching the limits of my expertise on this topic, and I'm now going to
sit back and study the ideas that others of the chevra put forward. For me,
the machlokesim are just too many and too far-reaching.

But I do have an idea that I'd like to offer for others to comment on. A
few months ago, I read a news article about a study involving bedridden
hospital patients who were avid golfers prior to their hospitalization.
Some of these golfers were instructed to imagine themselves on the golf
course, aiming and swinging and doing all the usual things that golfers do,
and to repeat this exercise regularly. Upon their release from the hospital
and return to a real golf course, it was found that those who did this
exercise had markedly better scores than those who did not. The conclusion
was that even though the exercise was purely mental, it did serve to keep
their skills sharp.

Upon reading that article, all I could think of, was the idea that if you
can't do a particular mitzvah for whatever reason, learning the details of
that mitzvah will provide a similar effect in ruchniyus.

I think this is very relevant to the current discussion. If learning about
tefillin can have such benefits even if I don't actually wear them, then
perhaps the person who actually does wear tefillin which he believes to be
kosher (even if they aren't) also gets that benefit.

To now, we've been talking about the "mechanism" of tefillin, and whether
they "work" even when they are "broken". Here we have a case where the
actual tefillin aren't even present, yet we can evoke (some of) their
metaphysical strength anyway. How does that work?

Akiva Miller

PS: I was not able to find that news article despite googling several
relevant terms, but the Wikipedia articles titled "motor imagery" and
"motor cognition" might have similar ideas.
Credit Card Company Breach
LifeLock Ultimate&#174;protects your identity from the effects of data breach.

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Message: 2
From: Zev Sero <z...@sero.name>
Date: Fri, 28 Mar 2014 12:11:48 -0400
Re: [Avodah] Why We Drink

On 28/03/2014 9:11 AM, Kenneth Miller wrote:
> You are taking legitimate facts about our wine and our yeast, but you're
> applying it to *their*  wine. Given that their wine was *undrinkable*
> unless it was diluted, and ours is *easily* drinkable, I suspect that your
> calculation is flawed.
> [...]
> In other words, I work under the presumption that a reviis of their
> wine probably did pack quite a powerful punch, and our "wine"
> qualifies for ritual purposes only because we have nothing better. Am
> I mistaken?

It's inconceivable that yeast became *less* hardy over the past 2000 years.
If the yeasts common before modern breeding projects used to die at around
12-13% alcohol, theirs can't have lasted any longer.  So we know their wine
can't have been any stronger than that.  That their wines were undrinkable
without dilution was mostly because even their "good" wines were half vinegar.

But part of it was simply that they regarded an 12-13% alcohol as too strong,
something only a barbarian would drink, even if it tasted good; they *preferred*
to drink their wine at beer strength.  Spirits would have been beyond their
comprehension altogether.

Zev Sero               A citizen may not be required to offer a 'good and
z...@sero.name          substantial reason' why he should be permitted to
                        exercise his rights. The right's existence is all
                        the reason he needs.
                            - Judge Benson E. Legg, Woollard v. Sheridan

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Message: 3
From: Micha Berger <mi...@aishdas.org>
Date: Fri, 28 Mar 2014 14:48:30 -0400
Re: [Avodah] Rav Elya Lopian: tefillin and radio

On Fri, Mar 28, 2014 at 02:16:22PM +0000, Kenneth Miller wrote:
: But I do have an idea that I'd like to offer for others to comment
: on. A few months ago, I read a news article about a study involving
: bedridden hospital patients who were avid golfers prior to their
: hospitalization. Some of these golfers were instructed to imagine
: themselves on the golf course, aiming and swinging and doing all the
: usual things that golfers do, and to repeat this exercise regularly. Upon
: their release from the hospital and return to a real golf course, it was
: found that those who did this exercise had markedly better scores than
: those who did not. The conclusion was that even though the exercise was
: purely mental, it did serve to keep their skills sharp.
: I think this is very relevant to the current discussion. If learning
: about tefillin can have such benefits even if I don't actually wear them,
: then perhaps the person who actually does wear tefillin which he believes
: to be kosher (even if they aren't) also gets that benefit.

: To now, we've been talking about the "mechanism" of tefillin, and
: whether they "work" even when they are "broken". Here we have a case
: where the actual tefillin aren't even present, yet we can evoke (some of)
: their metaphysical strength anyway. How does that work?

This doesn't distinguish between my theory and your theory (suggestion?).

IIUC, you posited the possibility of two effects of wearing tefillin
(1) the sekhar of doing the Maker's Will and (2) the spiritural /
metaphysical effects caused by properly wearing properly made tefillin.

I would agree that someone who can't do Hashem's Will and tries to at
least practice at it by learning would gain something of type 1 sekhar. I
would think that's what uneshalma parim sefaseinu and saying Qorbanos
is all about. (Although I also find meaning in saying Qorbanos because
it puts my tefillos in a continuity dating back to even before Anshei
Keneses haGedolah's invention of the concept of formal liturgy.)

Where this conversation had been focusing is whether type 2 sekhar
is a mystical process of the sort the Rambam would be mad at us for
even considering, accusing us of magickal thinking, or whether
it to depends on awareness and the soul's experience. And I gave my
reasons for believing the latter.

BTW, while the Rambam wouldn't be happy with our turning tefillin
into amulets, the Gra wasn't happy with this and other elements of
the Rambam's hashkafah. And perhaps mine. Or the hashkafah of anyone
who rejects the efficacy of astrology, for that matter.


Micha Berger             A person must be very patient
mi...@aishdas.org        even with himself.
http://www.aishdas.org         - attributed to R' Nachman of Breslov
Fax: (270) 514-1507

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Message: 4
From: cantorwolb...@cox.net
Date: Fri, 28 Mar 2014 13:34:39 -0400
[Avodah] Shabbas Hachodesh

Although... calling the halachic calendar "lunar" is an overstatement. 
I agree, which is why our calendar is actually Lunisolar.

The synodic month is very close to 29.5 days. Accordingly, the basic Hebrew calendar year is one of twelve lunar months alternating between 29 and 30 days
and then, of course, we have seven leap years in a 19 year period (which you all know, of course) to even out the disparity of a strictly lunar calendar.

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Message: 5
From: Eli Turkel <elitur...@gmail.com>
Date: Sat, 29 Mar 2014 21:00:57 +0300
[Avodah] copying papers

Prominent haredi figure and Holon Chief Rabbi Avraham Yosef gave approval
this week for copying university course work from someone else, in an
online forum for questions and answers on Jewish law.

?My friend needs to submit university work. She took the work from someone
else and asked me to change the wording so that the work will not look like
the same,? she said.
?Is it permissible for me to help my friend to reword the work?? Yosef gave
a brief response: ?[It is] permitted. And it is [fulfilling the]
commandment of bestowing kindness, especially if she has a good command of
the material.?




I would certainly not allow it in my classes

Eli Turkel
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Message: 6
From: "Chana Luntz" <Ch...@kolsassoon.org.uk>
Date: Sat, 29 Mar 2014 23:09:30 -0000
Re: [Avodah] Aliyyot to the Blind vs Aliyyot for women vs

RZS asks:

>>What is Sefardi practise when someone is called up while he is saying
>>birchot kriat shema?  Does he go up and read, go up and not read, or not

And I responded:

>Not go.

>Here's the Yalkut Yosef (chelek 1 hilchot kiryat Shema: 24 A cohen who is
>reciting kriyat shema and they call him to  go up to the Sefer Torah, does
>not interrupt to go up to the sefer Torah, and even if the call him by name
>[which the Yalkut Yosef doesn't particularly like, precisely because the
>might have a reason not to go, so he thinks they should be hinted to,
>although I am not sure how widespread that custom actually is] he should
>go up, like the opinion of Maran the Shulchan Aruch that we accept his
>rulings and not like those who disagree. (Yachave Da'at chelek 4 siman 11).

I should however note that the position of the Ben Ish Chai (Rav HaPoelim
Orech Chaim chelek 2 siman 16) is to differentiate between whether he is
actually saying Shema or just the brachos of the Shema.  With the Shema
itself, which is d'orisa, he holds that the man should not go, if it is just
the brachos of the Shema, he holds that the man should as these are just
d'rabbanan (this also being the position of the Taz).  But if the man does
go, the Ben Ish Chai holds that he needs not only to say the birchas
hatorah, but he also needs to read along quietly with the Chazan, to make
sure his brachos are not l'vatala.  

Note that the Ben Ish Chai in fact holds that it is a big disgrace and shame
for a man to be called by name and not to then take the aliyah and for
another to go in his place (even if we are not talking about kohanim, where
there might be concerns for pgam and where many might be able to see that
the reason was that he was in the middle of kriyas shema) hence his
willingness to waive d'rabbanans but not d'orisas.  (Interestingly the Ben
Ish Chai doesn't advert to the idea based on Brachos 55a that if one doesn't
go when called it can shorten one's life, although the person asking the
question does - so we don't know whether he just dismisses that as being
about something else, or holds that osek b'mitzvah patur min hamitzvah or
what.  It seems to me that if one were to take this idea seriously, then
surely questions of pikuach nefesh come into play, which would seem to lead
one to take the aliyah, although if a bracha l'vatala is d'orisa, like many
Sephardim hold, then clearly reading along quietly, even though a hefsek,
would be the preferable approach.  And that would seem more clearly to be in
line with that gemora in Brachos, which refers to one who is invited to
*read* from the sefer torah and does not *read* - of course in those days
everybody called up read themselves, but now we bifocate, one can ask to
which does this gemora apply?).

Then RZS wrote:

>Birchos hatorah, or saying amen to them, is a permitted hefsek in krias
>and its brachos.

But have you thought about why?  After all, these birchos hatorah
(especially if you are not talking about the first or last aliyah) are only
a takana of the Chachamim for those who come in and out.  And you are
proposing interrupting a d'orisa mitzvah of Shema (and even the brachos of
Shema to a certain extent have a higher status than most brachos - for
example if you are not sure whether you said kriyas shema or not,  you say
kriyas shema again with these brachos (Shulchan Aruch Orech Chaim siman 67),
even though generally if you forgot that you have done a d'orisa, taken
lulav on the first day for example, you take the lulav without say the
bracha).  So why should a more recent takana of the Chachamim take
precedence over such important brachos?  And even if you say that since one
of the primary justifications for why one is allowed to take the aliyah is
for kovod haTorah, which must be higher than kovod habriyos, and since kovod
habriyos allows you to interrupt the brachos of the Shema, kovod hatorah
should; why, if shomea k'oneh and areivus is at work here, don't you get the
Shatz to say the birchas haTorah on your behalf, so you don't need to
interrupt even to make those brachos - and you can use shomea k'oneh to
exempt yourself from that obligation?  Doing so won't violate the takana of
the Chachamim of making sure that those who go in and out don't think that
the Torah is ever read without brachos?  

I am not disagreeing that the Ashkenazi custom is as you state it is,
following the Levush and the Magen Avraham (interestingly, note that the
Rema himself does not disagree with the Shulchan Aruch) but there are lots
of interesting questions thrown up by such an approach.

Zev Sero               A citizen may not be required to offer a 'good and

Shavuah Tov


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Message: 7
From: cantorwolb...@cox.net
Date: Sat, 29 Mar 2014 22:42:12 -0400
[Avodah] A pre-Pesach Vort

The Kabbalists made an interesting play on the word ?Pesach.? 
They explained that ?Pesach? is a combination of the words ?peh sach? (the mouth speaks).
Accordingly, the redemption from Mitzrayim was also a redemption of the faculty of speech.
For this reason, they say we commemorated Passover with the oral mitzvah to retell the story
of the Exodus. We also find that Moshe, aware of this dimension of the Exodus, attempted to  
disqualify himself by protesting: ?I am not a man of speech.? [Sh?mot 4:10]

On this topic, Rav Kook wrote in a passage entitled ?Redemption of Speech? [Orot Hakodesh vol lll, p.285]:
?Sometimes we can sense the ties between our speech and the wolrd. This is the beginning stage of redeeming speech from its exile."

I recently came across the following novel insight regarding why the meraglim did not meet with G-d?s approval.
The answer given to this question as to why it didn?t lead to His approval, leads to an understanding of the role of language (speech) in real life.
We are under the impression that language is an avenue of communication between people. But, this being granted, 
language is not without its built-in faults. Consider the statement by Rudolf Arnheim, German born author, art and film theorist, 
and famous Gestalt psychologist (1904-2007):
?I have found that as soon as you have a concept for something, you start to exclude it from the checkup of continued experience. 
If you don?t constantly expose your concepts to experience, they rapidly become rigid and paralyzed. 
They become lifeless cliches, fossils of experience.?
What a brilliant insight!  This is exactly why we not only talk about but we relive the Exodus every year, as well as other mitzvot.

In our own literature, we have examples of language-transcendence which also point to this idea. 
Thus, ?The service of the Torah is greater than the study thereof.? (Berkhot 7b), 
Study is a word-language exercise; service is the REAL experience of Jewish dictates. 

?Talk is cheap. But with action, it becomes expensive"
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Message: 8
From: Lisa Liel <l...@starways.net>
Date: Sat, 29 Mar 2014 22:40:24 -0500
Re: [Avodah] copying papers

On 3/29/2014 1:00 PM, Eli Turkel wrote:
>> Prominent haredi figure and Holon Chief Rabbi Avraham Yosef gave 
>> approval this week for copying university course work from someone 
>> else, in an online forum for questions and answers on Jewish law.
>>                        "[It is] permitted. And it is [fulfilling the] 
>> commandment of bestowing kindness, especially if she has a good 
>> command of the material."

> Why would cheating be encouraged? It is certainly against most 
> university regulations.
> I would certainly not allow it in my classes

This was not only a horrible distortion of halakha, but a major chilul 
Hashem. The woman asked him if she could commit geneivat daat, and he 
told her it was a mitzvah?!


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Message: 9
From: "Prof. Levine" <llev...@stevens.edu>
Date: Sun, 30 Mar 2014 05:43:12 -0400
Re: [Avodah] copying papers

At 02:00 PM 3/29/2014, Eli Turkel wrote:
> Prominent haredi figure and Holon Chief Rabbi 
>Avraham Yosef gave approval this week ...

We have an Honor System at Stevens. All work is pledged and the students
sign the pledge saying they have not received assistance on any work
that is graded. It is not perfect, but it seems to work pretty well.
We do not proctor exams. See http://web.stevens.edu/honor/

The message that R. Yosef sent out cannot, IMO, be condoned from a
Torah standpoint. Dishonesty tends to spread from one thing to another.
Rav Breuer and Rav Schwab were sticklers for honesty in all aspects of
one's life, because this is what the Torah demands.

This will lead to all sorts of undesirable things including Chilul HaShem.
Normalcy and balance where oh where are you?


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Message: 10
From: Micha Berger <mi...@aishdas.org>
Date: Sun, 30 Mar 2014 06:58:27 -0400
Re: [Avodah] copying papers

On Sat, Mar 29, 2014 at 09:00:57PM +0300, Eli Turkel wrote:
: Prominent haredi figure and Holon Chief Rabbi Avraham Yosef gave approval
: see ...
<http://j.mp/1mhH7Cv>, shrunk from RET's original link to

I wouldn't trust JPost to get a pesaq right.

E.g., note the end of the quote (or "quote"):
:                                        " ... And it is [fulfilling the]
: commandment of bestowing kindness, especially if she has a good command of
: the material."

I don't know if he thought he was discussing turning in work to be copied,
to me it sounds more like he was giving permission to take a short-cut by
studying from the other student's work. But since we're talking JPost,
or any other newssource looking more to sell newspapers than to get a
pesaq halakhah correctly, it could have been mandled in other ways.

(Besides, one of my ve'adim is working on dan lekaf zekhus this week.)

So just commenting on the story, not RAY's actual position...

As the others posted: Geneivas da'as, no?

And this is in Israel. But even in chu"l, even if the professor and
everyone else they're misrepresenting their knowledge to -- including
everyone who utilizes their GPA, or in extreme cases of continued
cheating, anyone assumes they really deserved to graduate -- are
nakhri'im. Geneivas da'as aku"m is assur deOraisa. (R' Beuer and
R' Schwab were sooped! <grin>)

The mishnah on Chullin 93b says that we may not send a chopped up thigh
of meat to a nakhri that contains a gid hanasheh, and the gemara's
conclusion (94b) that this is bevause of geneivas aku"m. And this is
halakhah in CM 228:6. not just as a con job, but " "ve'af lignov da'as
haberi'os bidvarim" such that it looks like he's doing him a favor and
isn't. The SA's example is making an appointment to dine together with
no plans on ever doing so.

To quote what I posted on 2-Aug-2012, since I assume if I don't someone
will re-ask about the "deOraisa" bit (as happens every other cycle):
> Geneivas da'as is learned out from Vayiqra 19:11 (see Ritva Chullin 94a,
> Sma"g lav #55) and more to our point (but less supported) from Bereishis
> 31:20, "Vayignov Yaaqov es leiv Lavan", an instance of geneivas da'as
> aku"m.

> I would also note that midevar sheqer tirchaq is a reflexive lav, there
> is no object to the sentence outside oneself, the target of the sheqer is
> irrelevent.

Again, this seems so open-and-shut, I have a strong feeling The J-m Post
mangled it.

Tir'u baTov!

Micha Berger                 Life is complex.
mi...@aishdas.org                Decisions are complex.
http://www.aishdas.org               The Torah is complex.
Fax: (270) 514-1507                                - R' Binyamin Hecht

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Message: 11
From: "Prof. Levine" <llev...@stevens.edu>
Date: Sun, 30 Mar 2014 09:37:53 -0400
Re: [Avodah] copying papers

At 06:58 AM 3/30/2014, Micha Berger wrote:
>Again, this seems so open-and-shut, I have a strong feeling The J-m Post
>mangled it.

They we can soon expect to see a strong denial or at least a 
clarification regarding this issue from R. A. Yosef.  As the story 
stands now it seems that he said things that are clearly not in 
consonance with Torah.  Surely this deserves clarification.  YL
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Message: 12
From: Simon Montagu <simon.mont...@gmail.com>
Date: Sun, 30 Mar 2014 04:31:33 -0700
Re: [Avodah] copying papers

On Sun, Mar 30, 2014 at 3:58 AM, Micha Berger <mi...@aishdas.org> wrote:
> On Sat, Mar 29, 2014 at 09:00:57PM +0300, Eli Turkel wrote:
> : Prominent haredi figure and Holon Chief Rabbi Avraham Yosef gave approval
> ...
> : see ...
> <http://j.mp/1mhH7Cv>, shrunk from RET's original link to
> http://www.jpost.com/...
> I wouldn't trust JPost to get a pesaq right.

The original question and answer are here:

Notice the comments and RAY's rejoinders. The question he thought he
was answering was "Can I help my friend with an assignment if she has
trouble expressing herself in writing?" It's not clear from the
question that any breach of the university regulations is involved,
especially if RAY didn't learn in a university himself.

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Message: 13
From: Esther and Aryeh Frimer <frim...@zahav.net.il>
Date: Sun, 30 Mar 2014 21:21:19 +0300
Re: [Avodah] Aliyyot to the Blind vs Aliyyot for women vs

    We thank Ms Luntz for devoting so much time [in her post of March 27th]
    to the analysis of our position. Unfortunately, her lengthy analysis of
    the position of the Mehaber misses the mark. We discuss this issue at
    great length and with extensive documentation - in section VIA of the
    paper (and notes 168-175), which is entitled: "The Function of the
    Ba'al Keri'a." [Again we reiterate our invitation to those who are kind
    enough to comment on our position, to please study the Tradition paper
    inside.] We summarize below the penultimate paragraph of section VIA:
Originally, the task of each oleh was to read his Torah portion aloud to
the community from the sefer Torah. With the innovation of a ba'al keri'ah,
the task of the oleh has been effectively bifurcated: firstly, to read the
selected Torah reading from the Torah scroll; and secondly, to have that
selection read aloud for all the community to hear. BOTH subtasks must be
fulfilled together for the attendant berakhot to be valid. (See note 173
for documentation.) According to the school of Maharil, the ba'al keri'ah
can carry out both functions for the oleh via shelihut or shome'a ke-oneh.
(See note 174 for documentation.)

By contrast, Rosh's school views the first component, namely, the
obligation to read from the parchment, as the oleh's personal task alone,
which cannot be fulfilled via the actions of anyone else. After all, if the
oleh does not even read, argues Rosh, how can he make a berakha? Only with
regards to fulfilling the second part of his obligation, i.e., to have the
weekly portion recited aloud to the community, can the oleh be assisted by
the ba'al keri'ah. The school of Rabbenu Asher (Rosh) does not deny the
general effectiveness of shelihut or shome'a ke-oneh. However, they
maintain that these mechanisms cannot be invoked with regard to this first
task of the oleh - to read the selected Torah portion from the Torah
scroll. Several rationales have been proposed for this (see note 175 of the
paper at length).

	    R. Soloveitchik notes that while we advise olim le-khattehila
	    to read along quietly following Rosh, in practice, we rule like
	    Maharil. (See note 172 for documentation.) This was confirmed
	    as well by R. Aharon Lichtenstein who indicates that we rule
	    like Maharil bein le-kula u-vein le-Humra. Thus:(1)  It is a
	    widespread almost universal custom, both amongst Ashkenazim and
	    Sefaradim [contrary to the Mehaber and despite the revised
	    sringent ruling of RO Yosef] to call to the Torah the blind,
	    untrained, and illiterate, who clearly cannot or will not read
	    along from the scroll.  (2) In addition, R. Soloveitchik and R.
	    Benjamin Solomon Hamburger,  both note that if one is called to
	    the Torah while he is in the midst of birkhot keri'at shema,
	    the halakhic consensus is to accept the aliyya and recite the
	    blessings, but not to read along with the ba'al keri'ah, again
	    relying on Maharil.  (3) Finally, R. Moshe Soloveitchik ruled
	    that for Parashat Zakhor, the oleh should not
  read along with the ba'al keri'ah as required by Rosh. Rather, he should
  fulfill his obligations according to Maharil with the reading of the
  reader via shomei'a ke-oneh along with the rest of the community. (See
  note 172 for documentation.)


	    It would also seem that Ms Luntz misunderstands the Arukh
	    haShulhan's (OH 139:7) use of "Kol ha-ra'ui le-bila."  The AH
	    is not challenging the use of "Shome'a ke-oneh" in the case of
	    keri'at ha-Torah.  On the contrary, the Yerushalmi he cites
	    proves it is applicability; which is why one can read and
	    another can make the berakhot.  Rather, he raises the issue of
	    whether "Shome'a ke-oneh" is specifically applicable to a suma
	    - since a suma cannot read himself and, hence, may be totally
	    exempt from keri'at ha-Torah. What the AH is emphasising is
	    that only one who is capable of personally performing the
	    mitzvah can, via shome'ah ke-oneh, do so through others - and
	    thus the analogy to Kol ha-ra'ui le-bila. However, a blind
	    person who is not capable of performing the mitzvah of reading
	    the Torah  personally, cannot do so through another, even by
	    means of shome'ah ke-oneh. Consequently, since the suma can't
	    read, the ba'al korei can't do so for him. This understanding
  explicit in the Pri Megadim, OH 141, Mishbetzot Zahav, no. 3 (who, in all
  likelihood, served as the source for the AH), who writes: "Hinei suma
  yesh lomar de-lo shani shome'ah ke-koreh de-eyn ra-ui le-bilah." 
  Similarly, see: R. Aharon Levin (a younger contemporary of the AH),
  Birkat Aharon, ma'amar 53, no.1.

Indeed, R. Shneur Zalman of Lublin, Resp. Torat Hessed, OH 8 and R. Zalman
Druck, Mikraei Kodesh, sec. 40 - clearly state that the minhag haOlam to
give a suma an Aliyya is premised on the assertion that an suma is
obligated in keri'at haTorah and thus "Shome'a ke-oneh" from the ba'al
korei is effective. Cf. Pri Megadim, supra.


Finally, the gratuitous remark regarding "partnership minyanim clouding your mind," was uncalled for. We went into this effort with no agendas whatsover.


beKhavod Rav

    Aryeh and Dov Frimer


Prof. Aryeh A. Frimer
Chemistry Dept., Bar-Ilan University
Ramat Gan 5290002, ISRAEL
E-mail (office): Aryeh.Fri...@biu.ac.il

Prof. Dov I. Frimer
Frimer Gellman & Co., Advocates

Jerusalem Technology Park 

P.O.B. 48180 Malcha

E-Mail: dfri...@frimerlaw.com



----- Original Message ----- 

From: Chana Luntz 

To: 'Esther and Aryeh Frimer' ; 'Avodah Avodah' 

Cc: 'Prof. Dov Frimer' ; 'Joel B. Wolowelsky' 

Sent: Thursday, March 27, 2014 12:53 AM

Subject: Re: Aliyyot to the Blind vs Aliyyot for women vs Aliyyot for minors


On 24 March 2014 21:17, Esther and Aryeh Frimer <frim...@zahav.net.il> wrote:


 >In our paper we argue that for the oleh's berakha not to be a berakha
 >le-vatala, the oleh and ba'al korei must both be obligated in keri'at
 >haTorah (Major Male) so that the ma'aseh ha-mitsva (reading >aloud)
 >is transferred to the oleh who makes the

> berakha. Thus, a blind man may receive an aliyya and make the berakha,
> since he is obligated in Keri'at haTorah and the ba'al korei can read
> for him >and transfer the action to him. A women who is not
> obligated, may not read for others. [We do >reaffirm, however, that
> a woman and a minor may read for themselves.] 


Just as a side note, what is not clear from what you have said is how you
would consider a woman reading for another woman, or a minor reading for
another minor, these being equivalent obligations, but not the same as it
was in the times of the Mishna.


>Ms. Chana Luntz correctly notes that if this analysis were correct a
>minor could not serve as a ba'al korei for others. Yet, she testifies
>that in many sefardic communities minors indeed do read for >others.
> Over the past few days, Dov and I have spoken to >many Sefardic
>Rabbis who have confirmed that this practice is indeed found in some
>sefardic communities, though it is certainly a minority >practice -
>not the general custom. Several of these Sefardic Rabbis were adamant
>that such a practice is

> forbidden.


I think it would be useful to take a step back and outline what seem to be the key halachic facts, which as far as I can see are agreed:


The position of the Shulchan Aruch/Beis Yosef/Maran:


(A).	    The mechanism which validates the brachos over kriyas haTorah
when there is both a ba'al koreh and an oleh is due to the oleh reading
along quietly with the ba'al koreh.  


(B).	     Shomeah k'oneh, while brought by a minority of rishonim as the
applicable mechanism when there is both a ba'al koreh and an oleh, is
specifically rejected as a valid mechanim.


(C).	     A blind man cannot therefore be an oleh because (i) shomeah
k'oneh does not work (ie B above) and (ii) a blind man may not recite
anything by heart or after the ba'al koreh (enabling the brachos) because
kriyas haTorah falls into the category of torah shebichtav which is not
permitted to be said ba'al peh (SH OH 139:3).


The Position of the Darchei Moshe/Rema:


Brings the Meharil that the custom is to call up a blind man as an oleh. 
In the Darchei Moshe (OH 141:1) the Rema says he disagrees with this
custom, preferring the position of the Beis Yosef, but in his commentary to
the Shulchan Aruch (OH 139:3)he merely brings the Meharil as saying that
now is the custom to given aliyos to blind men like we give aliyos to the
ignorant (am ha'aretz).  Neither the Meharil not the Darchei Moshe give a
reason or justification for the custom of calling up a blind man besides
linking it to the am ha'aretz.


A number of commentators, most notably the Taz (Orech Chaim 141:3) argue
that this custom of calling up a blind man is based on application of the
principle of Shomea K'oneh and the rishonim (rejected by the Shulchan
Aruch) who postulate this principle.


 I think so far this is undisputed.


Logical Analysis


Now let us apply some analysis.  Vis a vis Maran/the Shulchan Aruch we have the following logical possibilities:


(a) Maran is right about (A), (B) and (C), and therefore we cannot call up
a blind man.  We might, but are not necessarily able, to call up a minor or
have a minor be the ba'al koreh, because there could be other reasons why
we do not want to do that, such as kavod hatzibbur, or kabalistic reasons
or simply minhag.  But vis a vis the question of the brachos said by the
oleh, there is no reason not to call up a minor for either position.


(b) Maran is right about (A), (B) and (C)(i), but not C(ii).  In this case
we could call up a blind man, but not because of shomea k'oneh, but because
he can either say the parsha by heart, or repeat it after the ba'al koreh. 
The Aruch HaShulchan advances this argument in Orech Chaim 139 siman 8
(based on the gemora in Yoma 70a).


(c) Maran is right about (A), (B) as well as (C)(i) and (C)(ii), but wrong
in essence about (C) overall, the calling up of a blind man, as there is
some other halachic mechanism that works in that case.


(d) Maran is right about (A), but wrong about (B) and hence (C).  That is,
both the mechanism of reading along quietly *and* shomea k'oneh work, the
first in the normative case, and the second in the case of a blind man.


(e) Maran is wrong about all of (A), (B) and (C)(i). That is, his quiet
reading along mechanism does not work, the only mechanism that does work is
shomea k'oneh and hence you can call up a blind man, but you cannot allow a
minor to be ba'al koreh when not reading for himself and similarly a woman. 


In order to hold as RAF/RDF do in their article, you have to hold position
(e).  In any other situation, the brachos are not b'vatala.  And if a minor
can be ba'al koreh for a gadol, then this position (e) cannot be right. 
However, the fact that a minor might not be able to be ba'al koreh does not
necessarily support position (e), as there may be other reasons, not linked
to shomea k'oneh, why one cannot or does not allow a minor to be a ba'al


Thus in order for the various Sephardi Rabbis and poskim you cite to actually support your position you need them to hold the following:


(I) a blind man can be given an aliyah (if not, then shomea k'oneh cannot be a valid mechanism as shomea k'oneh has to work for a blind man); and


(II)  A minor cannot be ba'al koreh for gadolim, but he can for himself. 
If however he is prohibited from being ba'al koreh even for himself then
the mechanism at work is not shomea k'oneh, but some other reason
prohibiting the minor from reading.


Merely having numerous poskim prohibit minors from reading does not assist
you if the reasons are not based on shomea k'oneh. But on the other hand,
those communities that do allow minors to read for adults are in direct
contradiction to your postulated halacha.


So I started working my way through the list of Sephardi poskim that you
cite to see into which category they fall, but gave up part way, because
not very surprisingly none of them really support your position.  The most
they generally support was that minors could not (or should not) be called
upon to be ba'al koreh.  For a start, any of your list who allow it b'shas
hadchak by definition does not support you.  Because a bracha l'vatala is,
according to the dominant Sephardi view, an issur d'orisa.  Were shomea
k'oneh the only operative mechanism, giving rise to a bracha l'vatala where
it failed, then no shas hadchak is going to permit the engagement with such
an issur d'orisa.  It is only if there are some other reason (a reason that
falls short of an issur d'orisa) why one should not have a minor as a ba'al
koreh that one might consider waiving that reason in a shas hadchak


But that in general your list is not going to support you is not very
surprising, because let's take a step back and think about what you are
asking.  It is certainly true that many if not most Sephardi poskim are not
quite as Maran centric as Rav Ovadiah Yosef, but just let us quote what Rav
Ovadiah says in his principles of hora'ah at the back of the first volume
of Yechave Daat:  


"3. One who turns from the words of Maran left or right, behold he is
mezalzel in the honour of his rabbaim, and all the rulings of Maran that he
is the Mara d'atra and we accept his rulings, and they are fixed like the
halacha of Moshe from Sinai, that there isn't in them any dispute at all. 
And therefore one is not to rule even a stringently against Maran if he is
lenient on a matter.  And in any event it is permitted to be stringent on
himself (privately) when he does not do this why way of a neder and he
knows that the essence of the halacha is to permit."


And yet you are asking and expecting all these Sephardi poskim to say that
Maran is wrong, not just once, but on three counts - ie all of (A), (B) and
(C) must be wrong to get to your position.  And yet as I have shown above,
these are not the only logical options - there are options not just of
following Maran fully as in (a) (even if you do not permit minors for other
reasons) but also of following positions (b), (c) or(d) all of which have
Maran being wrong at least one fewer time than you need him to be.  If
given a choice between ruling that Maran is wrong three times, and ruling
he is wrong twice or once or no times, which option do you think Sephardi
poskim are going to choose?


>Indeed, the analysis in our paper follows the lead of Magen Avraham (O.H., sec. 282, no. 6) 


Now even the Magen Avraham himself does not fully support your position -
stating only that one cannot call up a minor as ba'al koreh until he brings
two hairs. He does not state that the reason for this is shomea k'oneh. 
The Magen Avraham  does explicitly rely on the teshuva of the RaM Melamed,
but I have unfortunately not been able to track down a copy of that teshuva
(if somebody could send it to me, I would be very grateful).  It may be
that RaM Melamed does cite shomea k'oneh as the reason - but of course in
that case the Magen Avraham should be limiting his prohibition to where the
minor is not reading for himself (as you do), which he does not do. 
Otherwise it rather leads one to suspect that he is basing himself on other
reasons - kovod hatzibbur perhaps.


So the fact that various Sephardi communities are choshesh for the Magen
Avraham does not in itself support the idea that the only mechanism that
enables bracha making by an oleh who is not the ba'al koreh is shomea
k'oneh.  In contrast however, those communities, and we can have debates
about how extensive they are, but they clearly exist all over the world and
throughout the ages, force you, unless you are prepared to exclude them
from the tent of halacha and are willing to write them out of Orthodoxy, to
understand that the sole halachic mechanism involved cannot be shomea


And while the situation is more acute for Sephardi poskim, because of the
flat out rejection of Maran in three places, I am not convinced that even
the Ashkenazi poskim, while justifying the minhag of calling up a blind man
and following the Magen Avraham in not calling up pre barmitzvah minors,
would be comfortable with your full rejection of the threefold position of
the Shulchan Aruch, given the existence of options (b), (c) and (d).


For example the Mishna Brura, while citing shomea k'oneh as the mechanism
being used to enable a blind man to have an aliya (OH 139:12)  states in
the first Biur Halacha on OH 141 (d"h l'vatala)  that "it seems that the
Rema does not rely on the words of the Meharil except for the matter of a
blind man and an am ha'aretz that if they do not call them ever there is
much shame"  In contrast however but "when he is baki in reading indeed he
is obligated [to read] with the Shatz since behold he already wrote himself
in the Darchei Moshe that it did not seem to him the words of the Meharil
but the words of the Beis Yosef that he brings in the name of the rishonim
that if he is not able to read with the Shatz he is not able to be called
to the Torah".	That is a pretty clear statement as to the adoption of
position (d), ie that shomea k'oneh applies only in limited cases, with the
Shulchan Aruch/Rosh's mechanism being the dominant one in the normative


I think if you genuinely try reading these sources without the issue of
partnership minyanim clouding your mind, you will see them for what they
are, halachic justifications for the slightly difficult minhag of calling
up a blind man, not a substantive attack and rejection of the halachically
normative positions of the Shulchan Aruch and the Darchei Moshe.


>In her recent post, the truly erudite Ms. Luntz makes a very novel
>suggestion, namely: "Even if the oleh does not actually read along (at
>least somewhat) in the Torah, so long as he is able to perform >the
>ma'aseh mitzvah, it can be argued that he can still >make the
>brachos on the basis of Rav Zera's principle of kol hara'ui l'bila ain
>bila makeves bo." 


I'm afraid I have to apologise for giving what was clearly a misleading
impression, namely that this chiddush was my own.  In fact it is that of
the Aruch HaShulchan (Orech Chaim siman 139 si'if 7), who uses it to reject
the Taz's proof (from the  story regarding Rabbi Meir in the Tosephta in
Megilla and the Yerushalmi (perek 3 halacha 1)) for shomea k'oneh.  All I
did was draw out the logical implication implicit in the Aruch HaShulchan
that this could be used today to deal with those who can read but fail to
do so.


>Such a position is problematic for several reason. Firstly, Rav Zera's
>priniciple of kol hara'ui l'bila ain bila makeves bo is a mahlokes
>Rishonim ve-Aharonim le-halakha  whether it applies be-khol 

>haTorah kula or only where the Torah is megaleh.  Secondly, Ms Luntz is
>suggesting is that one can make a birkat ha-mitzva and never actually
>do the mitzva - and yet the berakha would not be a >berakha levatala
>because he could have done the 

>mitsva. So, for example, one could make a le-Shev ba-Sukka and never
>sit in it, simply because he could have. Or similarly, one could make
>le->Hadlik ner shel Hanukka and never light the candle; yet the
>berakha would not be le-vatala since one could

> have made the berakha.  Finally, the Rosh says that if the oleh
> doesn't read along, his berakha is le-vatala. But why? He could have.
> The Rosh, nor any subsequent authority ever entertained the
> application of kol hara'ui lebila to keri'at haTorah.My 

>brother Dov discussed Ms Luntz's >suggestion with Rav Asher Weiss,
>who summarily rejected it.	He posited that kol hara'ui l'bila  only
>applies to Dinim (status) not to mitsvot. He even cited a Ritva to
>Hullin 106b where one washes his >hands for bread >and makes al
>netillat Yadayyim - and then changes his mind and decides not to eat
>bread.  The Ritva says it is not a Berakha le-vatala, nor do we require
>the individual to eat bread, >because he actually did the mitsva
>action appropriate for the >berakha.  But, says Rav Asher, had he
>not done the mitsva action of washing, then obviously the berakha would
>have been le-vatala, even >though he could have washed.


In defence of the Aruch HaShulchan, we could perhaps suggest that there are
various hechsher mitzvos (if not part of the mitzvah itself) which do
involve action.  After all the oleh rises when his name is called and makes
his way up to the bimah (holacha).   He then usually (in the Ashkenazi
tradition) looks in the Torah, kisses the spot pointed to by the ba'al
koreh with his tallis, grasps the handles of the sefer and then makes the
bracha, at the end he then again looks in the Torah, kisses the place
pointed to by the ba'al koreh with his tzitzis.  Even if in this whole
process he does not catch sight of a single word that he ends up reading,
he has certainly looked into the actual Torah scroll .	And indeed we know
(inter alia from the mitzvah of chanukah candles that you cite) mere seeing
(roeh) can be enough to trigger a bracha, even without all this tzitzis
kissing and marking.  I would have thought that therefore the actions
involved were more than enough to justify us
 e of the principle, if the principle can be utilised at all.


Regarding the machlokus whether or not one can use kol hara'ui l'bila more
generally, I did note that "it can be argued" - but certainly the Aruch
HaShulchan there states explicitly that we can cite this halachic principle
"in general", although of course there are others who hold differently.


What to my mind is even more noteworthy about the Aruch HaShulchan however,
is the fact that he goes to some lengths to suggest alternatives to shomea
k'oneh - citing both this principle and the idea that perhaps the blind man
can recite by heart.  That is, one can detect here, just as in the Biur
Halacha, a general discomfort regarding the use of shomea k'oneh even to
support the calling up of the blind (a position he clearly supports).  It
is a long way from this to a position that invokes shomea k'oneh as
displacing all other mechanisms as in done in the article.


That, I just don't think is valid.  Not only because of the many frum
(Sephardi) Jews over the centuries who have and continue to call up minors
to read as ba'al koreh and whose practices you are attacking (and if they
are not neviim, bnei neviim hem - and the fact that there are other
communities that have an continue to hold differently does not mean you go
out of your way to invalidate the others).  But also because of the nature
of the halachic dialogue itself.  The blind case is an exceptional case,
the justifications for it are in that context. And to then cite those
justifications to argue for the incorrectness of not just one but three
positions taken by the Shulchan Aruch, when at most one disagreement is
required (and where the Rema himself disagees at most in one place), is
chipping away at the principle that the Shulchan Aruch stands as a dividing
line in the history of psak and potentially operates to weaken the
authority of the Shulchan Aruch vis a vis minority 
 rishonic opinion.  And this is not a situation where we can say that the
 Shulchan Aruch had not seen all the evidence we see today (such as lost
 rishonic opinions) or that his position here fundamentally contradicts a
 position he takes elsewhere (which are potential ways the eg Rav Ovadiah
 permits to allow disagreement with the Shulchan Aruch).  It is simply a
 threefold straight out rejection, which I do not believe is mirrored by
 the various achronim.	 I certainly do not believe this is your intention,
 but there are risks in undermining the psak of the Shulchan Aruch is such
 a straightforward fashion, and I do not believe you have in any way made
 the case to do so.



Kol Tuv

    Aryeh (from home; For Aryeh and Dov)





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