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Volume 36: Number 120

Tue, 16 Oct 2018

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Subjects Discussed In This Issue:
Message: 1
From: Zev Sero
Date: Mon, 15 Oct 2018 06:45:24 -0400
Re: [Avodah] two witnesses

On 15/10/18 04:12, Eli Turkel via Avodah wrote:
> On Micha's remarks it implies that the court can sentence someone to 
> death even though the facts might not be true.

As evidenced by the fact that if the witnesses recant after the verdict, 
even if their recantation seems credible we execute the person anyway.

Zev Sero            A prosperous and healthy 5779 to all
z...@sero.name       Seek Jerusalem's peace; may all who love you prosper

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Message: 2
From: Joseph Kaplan
Date: Mon, 15 Oct 2018 12:49:36 +0000
[Avodah] Two witnesses

?On Micha's remarks it implies that the court can sentence someone to death
even though the facts might not be true.
More important it raises the whole question of DNA samples and all of
modern techniques versus two witnesses. 
* * *
They hold (like Micha) that the psak determines kosher and treif
and not the metzius.  Timtum halev occurs when one one eats something
prohibited. Eating  pork that is mutar (eg it is less than 1/60) does not
cause timtum halev  I am not sure everyone agrees with R. Rappaport).?

ISTM that there should be a significant difference between executing
someone when you have definitive information (I won?t use the word
evidence) that he is innocent and eating a piece of meat that, although it
in fact came from a non-kosher animal, is treated halachically as kosher. 


Sent from my iPhone

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Message: 3
From: Micha Berger
Date: Mon, 15 Oct 2018 10:16:43 -0400
Re: [Avodah] two witnesses

On Mon, Oct 15, 2018 at 11:12:31AM +0300, Eli Turkel via Avodah wrote:
: On Micha's remarks it implies that the court can sentence someone to death
: even though the facts might not be true.

: More important it raises the whole question of DNA samples and all of
: modern techniques versus two witnesses

I didn't think I was implying that.

If there is evidence -- regardless of DNA's own issues -- but not eidim, the
facts are not established to the point of chiyuv misah.

If there are eidim to convict, but the evidence points otherwise, the
dayanim can't close derishah vechaqirah until they resolve the conflict
to their own satisfaction. Given the whole bit about "achas leshev'ah /
leshiv'im shanah", perhaps their own satisfaction should be to a "beyond
reasonable doubt" kind of standard. (Maybe the person had a mum exactly
where the knife entered would probably be considered by most of us
"beyond unreasonable doubt".)

: I am now learning with R. Rappaport about contradictions in halacha.  In
: particular about a group of animals that were schected and later a problem
: was found in a piece of meat and one doesnt know from which cow/sheep it
: can from.  Without going into all the details ic could happen that parts of
: the cow are considered kosker while parts of the same cow are considered
: neveilah...

The case in the SA that I remember 

:           They hold (like Micha) that the psak determines kosher and treif
: and not the metzius.

That is a misphrasing. I said that pesaq relies on how we perceive
the world -- and in fact this perception is the meaning of the word
"metzi'us". (Which, I will note again, comes from "matza", which doesn't
imply theoretical objective existence.)

The nearest I come to the way you put it would be to say that matters like
probability go into how we think about an unobserved unknown. Evidence is
a matter of changing the odds, not of establishing definitive metzi'us.


explaining the difference between kol deparish, where rov matters, and
qavu'ah. RAE makes is a chiluq between rules of birur when the reality
is unknown (kol deparish) and ones where the reality was established
but the halakhah is unkown.

Treating this as a very broad kelal, eidus changes a kol deparish type
question into a qavu'ah.  Which is why rov no longer epplies, and terei

Evidence without observation keeps it a kol deparish question, although
it does shift the odds.

Tir'u baTov!

Micha Berger             When a king dies, his power ends,
mi...@aishdas.org        but when a prophet dies, his influence is just
http://www.aishdas.org   beginning.
Fax: (270) 514-1507                    - Soren Kierkegaard

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Message: 4
From: Zev Sero
Date: Mon, 15 Oct 2018 06:40:52 -0400
Re: [Avodah] Shapiro Gives Fiery, Unprecedented Assault On

On 15/10/18 03:53, Eli Turkel via Avodah wrote:
>> Human life is a continuous process of growth, from the moment of
>> fertilization onward. Abortion is the killing of this human life.?>>

> Nevertheless halacha does distinguish between a fetus and a born infant. 
> Killing a fetus is not murder

According to some.

> and in fact achronim debate exactly what the prohibition is

With the Rambam's view, that it *is* murder, being a prominent option.

And as Ronald Reagan pointed out, if you're not sure whether something 
is murder, then committing it is at least reckless endangerment.

Zev Sero            A prosperous and healthy 5779 to all
z...@sero.name       Seek Jerusalem's peace; may all who love you prosper

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Message: 5
From: Micha Berger
Date: Mon, 15 Oct 2018 11:50:59 -0400
Re: [Avodah] Shapiro Gives Fiery, Unprecedented Assault On

On Mon, Oct 15, 2018 at 06:40:52AM -0400, Zev Sero via Avodah wrote:
: >and in fact achronim debate exactly what the prohibition is
: With the Rambam's view, that it *is* murder, being a prominent option.

Except that the Bach explains that's is NOT what the Rambam holds. Which
is why Rotzaiach 1:9 distinguishes between aborting to save the mother
before crowning, and not committing infanticide a fraction of a moment
later after the baby crowns.

If abortion were murder, there would be no shift in priorities between
the mother's and baby's lives before and after birth.

Or: A "KErodeif" (as the velad isn't doing anything itself to risk the
mother) who isn't a full person may be killed, but once born, ein dochin
nefesh mipenei nefesh.

Rashi (Sanhedrin 72b "yatza rosho") says that the unborn fetus isn't
subject to "ein dochin NmPN" because it isn't a nefesh yet.

The Bach makes the Rambam conclude like Rashi, which I think the
contrast of halakhah 9 forces you to without the Bach. The Rambam
cites the kelal of "ein dochin" only in the 2nd case. Why?

Tir'u baTov!

Micha Berger             Spirituality is like a bird: if you tighten
mi...@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

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Message: 6
From: Micha Berger
Date: Mon, 15 Oct 2018 12:01:31 -0400
Re: [Avodah] Shapiro Gives Fiery, Unprecedented Assault On

On Mon, Oct 15, 2018 at 11:50:59AM -0400, Micha Berger via Avodah wrote:
: The Bach makes the Rambam conclude like Rashi, which I think the
: contrast of halakhah 9 forces you to without the Bach. The Rambam
: cites the kelal of "ein dochin" only in the 2nd case. Why?

The Arukh laNeir (Sanhedrin 72b) writes that the chiluq is that in the
second case we cannot isolate whether the child (once crowned) is the
mother's rodeif, or the other way around.

The IM (CM 2:69) writes similarly.

But neither deal with the Bach's question of how that means "ein dochin"
is the principle in particular invoked to explain why we cannot kill
the baby after crowning, but not the fetus a moment before.

Also, how is it true that we always know before crowning that it's
the fetus in the mother's way, but if the head is partly out, we don't?
Balebatishe question.... Let's say it's the umbilical cord vs the mother's
blood loss -- does that dynamic change with crowning?

But in any case, my point was that the Bach means that we cannot say as
a certainty that there is a machloqes between Rashi and the Rambam about
whether a velad is a person. Just that some acharonim take him to say so.

And once you look at acharonim, variants on the theme that is definitely
Rashi's abound.

Tir'u baTov!

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Message: 7
From: Zvi Lampel
Date: Mon, 15 Oct 2018 09:48:28 -0400
[Avodah] Apparently conflicting Stam Mishna

*Date: Fri, 12 Oct 2018 10:20:01 -0400*
*From: Looking ForInspiration <loooking.for.inspirat...@mail.gmail.com
*To: avo...@lists.aishdas.org <avo...@lists.aishdas.org>*
*Subject: *


*This is my first post to aishdas.org <http://aishdas.org>, so forgive me
and direct me **if needed.*

*Up until the end of the 4th Perek of Baba Kama, Stam Mishna holds that **when
there is doubt, Hamotzi Mechavero Olov Horaayah. In the 5th Perek, **it
holds that when in doubt, you divide the money in doubt. Does this **mean
that Shisha Sidrei Mishna does not have just one author?*

*I have done some quick research through the Hakdamas Hamishna
Larambam, **Klallei
Hamishna, and some other sources, but nevertheless, if someone **can direct
me to sources and research on as much detail as possible **as to *what
transpired in the process of the Mishna being written* it **would be much
appreciated. Did Rebbi write all the Mishnayos (and if so, **the question
above is a strong one)? Did Rebbi write some, but in Baba **Kamah he
stopped at the 4th Perek, and someone else wrote the rest of **Baba Kama?
Did Rebbi or the other authors of the Mishna, if any, write **the Mishna
from memory, or compiled previously written text, or both?*

*Thank you in advance.*


This should be helpful:

From Rambam's Letter to R. Pinchas HaDayyan (In R. Sheilat's edition,
Teshuva 140):

...every decision that he [Rebbi Yehuda HaNassi] presented without
attaching an author's name originated [not with him, ?but] with other
sages. And those other sages as well were not the originators of those
decisions, ?but [merely stated how they understood what they] obtained from
the mouths of others, and the ?others from still others, back to Moshe
Rabbeynu. .. [T]hey ...explicitly stated in so many places, ?Rebbi
?endorsed the words of So-and-so regarding issue A, and presented them
anonymously; but he ?endorsed the words of So-and-so regarding issue B, and
presented them anonymously.".This ?openly states that whatever Rebbi
endorsed as final halacha, and considered the proper ?practice to follow,
he stated without associating anyone?s name with it. And in so many places
?the Gemora says, ?This anonymously-stated halachah is an individual?s
opinion [and not the ?majority?s]?--Rabbeynu did not mentioned the names of
any of them [--neither that of the ?individual whom the halacha followed,
nor that of the majority].
?[Only] when it came to matters that Rebbi did not consider settled, but
still debatable, and ?about which he did not lean one way or the other, did
he state both opinions in the names of ?their proponents (?R. So-and-so
says this, and R. So-and-so says that?) mentioning the names ?of those
sages, or of recently living ones, from whom he heard those opinions--but
[still] not of ?their mentors or mentors?-mentors' names. For at the time,
many people still followed one ?opinion, and many still followed the
opposing one.

Suffice it to say that he [himself] told us ?explicitly why, in some of the
mishnas, he attached names:?
And why do we mention the words of Shammai and Hillel only to negate them
[by ?adding that the majority of sages disagreed with both and decided
differently]??to ?teach the following generations....? ? And why do we
mention the dissenting words of ?individuals along with those of the
majority...???So that if a Beis Din will agree with the ?individual?s
opinion and rely upon it....[R' Yehuda (ben El'ai) added:] And why do we
?mention the words of the individual together with those of the majority
only to negate ?them??So that if a person reports receiving a teaching
other than that which was ?accepted by the majority....??

...it was only necessary to mention opposing opinions during those times
?that some practiced one way, and others practiced a different way, when
some obtained the ?law according to one sage?s opinion, and some according
to another sage?s opinion.

End of quote from Teshuva.

Regarding stam mishnayos that contradict, each mishna had its own author
and, following Rambam, Rebbi placed them in the order he did. One
explanation is that he changed his mind, and his pesak is identified by the
rules of stam v'acher kach machlokess (machlokess meaning a mishna with an
opposing view, not necessarily a mishna contaning two views), and vice

However, the majority of Tannaim in Rebbi's day did sometimes differ with
him. And in cases where the Beis Din Gadol did not put the issue to a
formal vote, later authorities, even Amoraim, did not necessarily follow
Rebbi's decision.

Regarding the last point, check out Rambam's payrush, followed also by the
Rav MiBartenura, on the mishnayos at the beginning of Eidiyos, and see how
it differs from that of the Raavad and Tosefos Shantz

Zvi Lampel

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Message: 8
From: Joshua Meisner
Date: Sat, 13 Oct 2018 23:23:41 -0400
[Avodah] Wearing Tefillin All Day

[Moving this aspect of the discussion over from Areivim. Subject line
is mine. -micha]

On Fri, Oct 12, 2018 at 4:35 PM Micha Berger via Areivim wrote:
> On Fri, Oct 12, 2018 at 01:26:50PM -0400, Prof. Levine via Areivim wrote:
>: I am surp[rised that you did not suggest that men begin wearing
>: tephillen the entire day as was apparently the custom in ancient
>: times...

> For people who had desk jobs.

> Laborers didn't, for pragmatic reasons. And in an agrarian society, that
> was most men most of the day, except in the winter.

My impression was that the heter to not wear tefillin (issur to wear
tefillin) only applied to particular cases, such as one who was carrying a
burden (of a particular size or content, i.e., excrement) on their head,
but that a normal farmer/craftsman/laborer would generally wear tefillin
the entire day.  A braissa on Shabbos 130a indicates that many people did
not wear tefillin, but it is critical of this practice, and although the
gemara appears to give a justification of such (while still maintaining its
objection to the reality), it is not along the white collar/blue collar


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Message: 9
From: Micha Berger
Date: Mon, 15 Oct 2018 14:18:59 -0400
Re: [Avodah] Wearing Tefillin All Day

On Sat, Oct 13, 2018 at 11:23:41PM -0400, Joshua Meisner via Avodah wrote:
:                  A braissa on Shabbos 130a indicates that many people did
: not wear tefillin...

The context is, any mitzvah, like milah, that people were moseir nefesh
for when there was a government deceree is still muchzeqes beyadam.
Tefillin was given an example where there never was such a history,
and therefore our commitment remains less.

It says "merupeh beyadam", not that people weren't wearing them at all,
which is what you say here. Nor, more on-target for our discussion,
that people were wearing them just for davening instead of all day.

Possible referants:
Tzeduqim wore their tefillin on the bridge of their noses (bein einekha).
So many Jews were nikhshal.

Or maybe there were sects who believed like the Qaraim or R that there
are no physical objects involved at all to keep the ideas in sight and
at hand.

But it just struck me -- most likely, that they weren't careful to keep
a guf naqi. After all the gemara reads:

    ... kegon tefillin, adayin hi berufah beyadam.
    DEamar R' Yanai: tzerichim guf naqi...

What's that dalet doing there in "de'amar" if R' Yanai wasn't discussing
said ripui?

RGS writes <https://www.torahmusings.com/2014/01/why-no-tefillin-2>:

   Here's a question for you: Why don't men wear tefillin all day
   long? The mitzvah is not just during morning services; it is throughout
   the day (cf. Tur, Orach Chaim 37). So why don't we wear them all day?

   The answer to this question is historical...

   There is textual evidence that already in Talmudic times there were
   many people who did not wear tefillin....

His argument here is the same as yours.

   ... The Gemara (Rosh Hashanah 13a) specifically condemns those who
   never wear tefillin.

   This laxity by many on wearing tefillin continued into the Middle Ages.
   Tosafos (Shabbos 49a sv. ke-Elisha) write that one should not be
   surprised that at that time people were lax in tefillin, since they
   were in the times of the Talmud also. This is attested to in many other
   places, and in the times of the Geonim there are even implications that
   almost no one in the land of Israel wore tefillin. The Beis Yosef (Even
   Ha-Ezer 65) quotes the Kol Bo who suggests that in some communities
   ashes are not placed on a groom's forehead because the community
   members do not wear tefillin. There was even a responsum by R. Sherira
   Gaon, copied in many medieval works on halakhah, answering a question
   about whether it is yuhara (haughty) for a yeshiva student to wear
   tefillin when no one else does.

   It seems that in order to defend this practice, some rishonim utilized
   the idea that one who wears tefillin needs a "guf naki - clean body".
   The Shibbolei Ha-Leket (Buber ed., p. 382) quotes one view that "guf
   naki" means that a person is clean of sins....
   Sefer Ha-Chinukh (no. 421) states that "guf naki" does not refer to
   someone who has no sins or impurity, implying that someone else had
   suggested that it did. The author explicitly condemns those who are
   strict on the holiness of this mitzvah and thereby deprive the masses
   of the mitzvah. Rather, "guf naki" refers to the ability to refrain
   from passing gas and thinking improper thoughts while wearing the

   R. Moshe of Coucy (Semag, mitzvos aseh no. 3) tells of how he would
   travel around thirteenth-century Europe, preaching to people that they
   should wear tefillin during the morning prayers. Even if they cannot
   control themselves all day, people can certainly maintain a guf naki
   for the prayer services (that is the view of Tosafos [Pesachim 113b sv.
   ve-ein]; Rosh [Hilkhos Tefillin, no. 28 and Beis Yosef [Orach Chaim
   37]; footnote 8 in the Schlesinger edition of Semag assumes the Semag
   agrees). Evidently, this practice of wearing tefillin only during
   morning prayer services took hold and the prior practice of widespread
   abandonment of the mitzvah slowly turned into minimal performance of it
   during the morning prayers.

   However, someone who cannot control himself and cannot maintain a guf
   naki may not wear tefillin. Despite the biblical obligation, someone in
   a definite situation such as that should not wear tefillin at all
   (Shulchan Arukh, Orach Chaim 38:1). For this reason, the Arukh
   Ha-Shulchan (Orach Chaim 38:6) rules that those who are not obligated
   in the mitzvah of tefillin -- such as women -- should never place
   themselves in even a doubtful position of not maintaining a guf naki.

Tir'u baTov!

Micha Berger             I always give much away,
mi...@aishdas.org        and so gather happiness instead of pleasure.
http://www.aishdas.org           -  Rachel Levin Varnhagen
Fax: (270) 514-1507

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Message: 10
From: Ezra Chwat
Date: Tue, 16 Oct 2018 07:45:18 +0000
Re: [Avodah] The Shape of the Tavah

[Micha] wrote:
> Borne on the surface of the water means all the weight is above the
> water, including the center of gravity. As it bobs on the water, the
> fulcrum is where the bottom hits the water. When the center of gravity
> is above the fulcrum, balance is difficult.

Great insight, it's pshat in [Beresheet VII: Vateilekh hateivah al penei
hamayim] meaning, all of it above surface, as in Gen I 2. Although there
are a plenty (majority) sources in [lehon miqra] and [lehon chaza"l]
where the meaning clearly infers partial immersion below the water
surface. [Doq vetishkach] search and see.

In any case this also sheds literary light on the two images presented
for [lechem hapanim] (Menahot 94b): [sefinah roqedet] vs [teivah perutzah].
Why these images instead of description? Perhaps theres a message here
about [teivat Mosheh] or [teivat Noach]

Here's Rashi's drawing

Dr. Ezra Chwat    |Manuscript Bibliographer
Department of Manuscripts
The National Library of Israel, Jerusalem
Edmond J. Safra Campus, Givat Ram,
P.O. Box 39105, Jerusalem 9139002
ezra.ch...@nli.org.il  |  www.nli.org.il


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