Avodah Mailing List

Volume 02 : Number 065

Sunday, November 29 1998

• [none]
• Re: Avodah V2 #64
• Re: Avodah V2 #63
• Rambam's 2nd shoresh
• Mekach taus, gezel of terafim
• Yishuv Ha'Aretz and Chillul Hashem.
• Eruv Sefer
• Shoresh II:Difficulties
• Tur & Shulchan Aruch
• Re: mekach taus by ishus ben noach

Subject: chillul hashem

R YGB writes
>> Do we not see here that the mitzva of Yishuv Eretz Yisroel may be
>> overriden by cheshbonos of Chillul Hashem?

As I previously wrote Rav David Cohen a major posek in America states
that Israel may not return lands because it would cause a chillul
hashem!!
(personally I find this harder to understand than YGB's position)

That leads to the question - are there any objective standards for
determining what is a chillul hashem?

I assume that any deed in performance of a mitzva cannot be a chilul
hashem.

As a kid I remember many people saying that a chasid weraing beard
and payot in a gentile society was a chillul hashem. Is fear of
the goyim the same thing as chillul hashem?

I once read that in some musar yehivot that the talmidim would on purpose
do actions that outsiders deemed strange in order to condition
themselves not to be influenced by the opinions of others
(musar specialists on this list can help me on this one).
Why doesn't this violate chillul hashem?

In Israel there is constant battle over religious legislation.
I once heard from Rav Lichtenstein that the only outcome from
the Israeli law banning the sale of chametz on Pesach (by Jews) was
hatred of the religious and he saw no justification for such a law.
On the other hand the haredi parties continually press for more such laws.

The latest ruckus is over a movie theater in a new complex outside
the Jaffa gate. According to the Israeli press (not the most reliable)
the Eida charedit and Rav Eliyashiv have protested allowing such a
theater to open. Does such an action create a chillul hashem?

In summary, I find that in practice few gedolim would restrict
activities because of chillul hashem. In seems to vague of a
concept to apply in real situations.
In particular with regard to giving back land I have never heard of
anyone who advocates giving back land on the grounds of chillul
hashem within Israeli society.

kol tuv,
Eli Turkel

Topic:  The Rambam as the source for the Shulchan Oruch

The Shulchan Oruch is based most often on the Tur.  The Tur's opinion, in
contrast to what some of the posters seem to suggest, is based (most of
the time) on a two thirds majority among the Rambam, Rif, and Rash.

Also, the problem that many had with the Rambam's not quoting sources is
first mentioned by the Ra'avid in the Hakdamah to sefer Ma'adah.  The
Kesef Mishnah there defends the Rambam against these attacks. 

Ben
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Topic:  Ribis in the purchase of options?

YBG Wrote:
>The problem is the issur d'rabbanan of buying and selling at discount
for
>hakdamas ma'os.

Thank you for your response.  While admittedly I am not well versed in
the intricacies of the Halachah Lemaiso of Ribis, I am still not sure why
there would be a problem of Ribis in the purchase of stock options
(unless I misunderstand how stock options work).  There are indeed many
instances where Ribis is Asur (midirabanan) even Derech Mekach Umemkar. 
The Mishnah in BM 72b prohibits to pay for a years worth of merchandise
in advance, in an instance where the seller does not yet posses the
merchandise, unless a stable market value has been established.  This is
out of fear that the price will rise, and the additional value that the
buyer receives will be considered payment for hakdomas ma'os.

But options should be very different.  In those case, the buyer gives
money now which is going to pay for merchandise which he will receive
later.  Specifically, I believe because the eventual merchandise is given
because of the original money paid.  As such we view the original money
as a loan and the merchandise eventually taken as repayment of the loan. 
Therefore when the "repayment" is a greater value than the money given,
it looks like Ribis.  But in the case of options it is very different. 
The money I give now has nothing to do with the eventual benefits
received.  I will have to make a new purchase then.  We can not look at
the money I give now as a loan because it will never be repaid.  It is a
true purchase.  I pay money now to BUY a "right" to make a purchase at a
later date.  The transaction of buying this right is now complete.  I
will have to give different money then for the stock I buy later.  If the
money which I give now will never be repaid, how can that even look like
a loan?

Ben
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I'd like to point out that the Rambam (Hilchos Ishus) writes that if a
woman who was married with kesef is m'zaneh, she is chayav misa.  Since
the Rambam says in perek 1 that kidushei kessef is m'divrei sofrim, could
Rabbi Eidensohn explain how he and those rishonim understand the Rambam
to mean that m'divrei Sofrim isn't (in our terminology) d'oraisa?  Even
the Ramban has a problem with this.  He asks that if the Rambam holds
it's m'divrei sofrim how can the women be chayav misa.  And nowhere that
I know of does the Rambam suggest that the chiyuv misa is d'rabbanan.  In
fact, I always understood the Kessef Mishna's comment to that halacha
(kiddushei kessef)  as supporting Noah Witty's reading,  to mean that the
Rambam's issue in the 2nd shoresh is one of being counted in the 613.  

I propose that the machlokes between the Rambam and Ramban is one of
semantics. i.e. What does it mean to be d'oraissa.  I know that this
seems like too simple of a manner to resolve such an issue.  (I mean, if
it's that simple, how come they couldn't figure it out?)  But that is the
gist of the Ramban's problem.  He knows that the Rambam says kessef is
divrei sofrim.  He knows that the Rambam holds she's chayav misa.  So
what's the problem?  How come the Ramban can't understand divrei sofrim
differently?  

I think that the answer to this question is that the semantics are what
disturb the Ramban.  What he's saying is that it's wrong to give a drasha
the misleading appellation of divrei Sofrim.  It makes the halacha in
question appear to be less chomur than a d'oraissa, even though he
concedes that on the issue of kiddushei kessef, the Rambam says it's just
as chomur.  He (The Ramban) himself writes that if the Chachamim made a
drasha, it is on identical footing with a passuk.  [Or maybe the Rambam
would hold that it's not on equal footing in all respects.  I don't know
of any nafka minas l'halacha.  Then again, I don't know of any nafka mina
l'halacha of being counted in the 613. I heard that the Ran hods that
something which is learned from a drasha is safek l'kula, like a
d'rabbanan.  Could it be that the Rambam holds like the Ran?  I don't
have enough b'kius in the Rambam's writings to answer that question. ] 

Looking forward to seeing more postings on this issue.

Raffy
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Mekach Taus was a bad choice of words in describing Ya'akov's ishus w/ Leah,
as my brother-in-law notes there can be no mekach taus where there is no
kintan.  What I meant to write is that even a ben Noach cannot establish ishus
without knowing who the woman is, esp. acc. to shittas HaRambam (Ishus 1:1)
that it requires being meyached the women (see Ran Sanhedrin 58).  Upon
further reflection  even in light of the Netziv that Ya'akov did complain to
Lavan that he was led to a biyas znus bec. Leah was substituted, what is the
issur of biya shelo l'shem ishus for a ben Noach?  At best an issur aseh of
'v'davak b'ishto' acc. to some Rishonim?

I'm absolurtey perplexed by Rachel stealing terafim - gezel is assur even for
a ben Noach!  Anyone have some ideas?  

Agav YGB' s reference to chupah - I assume this was meant as a loose analogy.
Tnai by chuppah isn't so pashut, see Or Sameach Ishus 10; 'lo ra'inu aino
ra'aya' but I can't find the R' Chaim you reference anywhere.  

-Chaim

On Sat, 28 Nov 1998, Eli Turkel wrote:

> Subject: chillul hashem

You did not address the source I quoted. Please do. Ssee Encyclopedia
Talmudit. Erech Chillul Hashem, fn 103.

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

Tad of shameless self promotion of my sefer: "The Contemporary Eruv: 
Eruvin in Modern Metropolitan Areas" available in Seforim Stores, is,
amazingly enough, available at an extraordinarily discounted price, from
barnesandnoble.com at the url quoted below (the price they're selling it
at is barely above the author's price I have to pay!). This is a new,
hardcover edition, 122 pages, dozens of beautiful diagrams, published by
Feldheim Publishers. 

Yosef Gavriel Bechhofer
ygb@aishdas.org

raffyd@juno.com wrote:

> I'd like to point out that the Rambam (Hilchos Ishus) writes that if a
> woman who was married with kesef is m'zaneh, she is chayav misa.  Since
> the Rambam says in perek 1 that kidushei kessef is m'divrei sofrim, could
> Rabbi Eidensohn explain how he and those rishonim understand the Rambam
> to mean that m'divrei Sofrim isn't (in our terminology) d'oraisa?  Even
> the Ramban has a problem with this.
>
> I propose that the machlokes between the Rambam and Ramban is one of
> semantics. i.e. What does it mean to be d'oraissa.  I know that this
> seems like too simple of a manner to resolve such an issue.  (I mean, if
> it's that simple, how come they couldn't figure it out?) .... So
> what's the problem?  How come the Ramban can't understand divrei sofrim
> differently?
>

If we are dealing with simply a question of semantics then the Rambam should
be understood "I am taking the term divrei sofrim -  which until now we all
agree means something the Rabbis have decided on their own - and using it to
differentiate between a doreissa din which I count as one of the 613 mitzos
which I will call doreissa and something which is learned out from the 13
midos which I will now call - despite the consistent and widespread use to
the contrary - divrei sofrim" He should further say "that everywhere else I
use the term divrei sofrim - it should also be used to mean a doreissa din
which is learned out from a drasha"

Taking your single case of hilchos ishus  - the semantic explanation
apparently resolves all the problems. But taking a broader view such as the
Ramban did. you find at least  two problems with this simple resolution 1) if
the Rambam really wanted to make the distinction between two types of
doreissa dinim -why didn't he use a terminology which would be less
confusing. In other words if I want to differentiate between two type of male
obligations why should I call one male and the other female. This leads to
tremendous confusion when I use the  term female to also indicate non-male
obligations. Divrei Sofrim is either Doreissa or it isn't. 2) If you go
through the full range of halachos you find that the Rambam sometimes also
used the term divrei sofrim the same way everybody else does.For example in
hilchos avoda kokavirm 12 9  Rambam says, "removing a hair from the rest of
the body... does not violate a Torah prohibition but is prohibited from
divrei sofrim and he gets makkos mardus"  So far we have found that Rambam
describes kinyan kesef as divrei sofrim - when according to the kessef mishna
he really means doreissa, while dealing with other halahcos he uses the term
divrei sofrim to refer to rabbinic enactions. [I found 265 times that the
Rambam uses the term divrei sofrim - they all need to be checked out to see
how consistent he is.]
To compound the confusion we in fact have gaonim such as the Baal Halachos
Gedolos who describes rabbinic enactments such as Chanuka as being Doreissa
(Shoresh I) and Gaonim(She'iltos) who describe halachos derived from the 13
midos as really being rabbinic (in the accepted sense). Furthermore you have
such gedolim as the Divrei Chaim taking the Rambam literally to posken that
someone who commits adultery does not have to notify the husband because of
the rule that embarrassment takes precedence of rabbinic laws.[ The Noda
B'Yehuda ruled in that case that the adulterer does have to tell the
husband.]

Identifying the real position of the Rambam is thus very difficult. A shver
Rambam typically means extremely clear statements which seem inconsistent.
Furthermore - what  *is* the precise definition of doreissa, derabbonin, and
divrei sofrim?

In sum: 1) The Rambam seems to be inconsistent in his use of the term divrei
sofrim as either  an indicator of a doreissa din which is not from a posuk
e.g.. kinyan kesef  or as a rabbinic decree. 2) Furthermore there are
legitimate positions that a drasha is actually a Rabbinic halacha  But if the
Rambam agreed with them so why is the woman chayiv misa? 3) There are psak
halacha which assume the Rambam meant an actual rabbinic halacha.   Therefore
a meaningful understanding of the Rambam requires looking at the whole
picture -  not only to  select  those cases which support a simple
resolution.

In keeping with the assertion that this is a high level discussion group -
not only is it important to give citations for our discussion - but research
should be done before tossing out "obvious" solutions for problems that our
gedolim have agonized over. Given the high level of education and
intelligence of the group - why waste each other's time with knee jerk
responses when 10 minutes of thought and looking up the original -  can
provide information that enriches and advances our avodas HaShem?
Questions, however, don't require that care. Therefore it would be more
helpful - when there is no time for research and thought - to propose an
issue as a question not as a confident solution.

                                                              Daniel
Eidensohn

Ben Smith wrote:

> Topic:  The Rambam as the source for the Shulchan Oruch
>
> The Shulchan Oruch is based most often on the Tur.  The Tur's opinion, in
> contrast to what some of the posters seem to suggest, is based (most of
> the time) on a two thirds majority among the Rambam, Rif, and Rash.

I would appreciate your source for the above. I was taught that the Tur was
based primarily on his father the Rosh. The Rambam is widely quoted in the
Tur  but still comes in 2nd to the Rosh.  The Shulchan Aruch is generally
based on his commentary to the Tur - the Beis Yosef. The Beis Yosef claims he
is following the two thirds majority of the Rambam, Rif and Rosh - but the
Rambam wins more often then this formula would predict.

The Toldos HaPoskim volume II page 214 "when there was a dispute amongst the
rishonim he presented the rishonim and the decision of his father the Rosh
because his father the Rosh was the arbiter for him. He did not oppose the
Rosh except in very rare cases. Not for nothing do the poskim view the
opinion of the Rosh and that of the Tur as a single opinion....[page 215]
Except for the Rosh there is no special preference to any particular group of
poskim or approach. In most cases he followed majority opinion whether they
were sefardim or ashkenazim."


                                                      Daniel Eidensohn

In a message dated 11/26/98 10:52:54 AM EST, sbechhof@casbah.acns.nwu.edu
writes:

Reb Chaim wrote:

>  > Netziv (29:23) is mashma that
>  > Leah was not mekusheshet till Ya;akov knew exactly who she was and
>  > agreed. 

Reb YG responded:

>  Mekach Ta'us applies only in acquisitions - via
>  transactions. See also the Rambam at the beginning of Hil. Ishus.

IMHO both are Shver to say that Beoh Rishonoh was reduced to Znus R"L, or to
say that Nissuin of the Ovos (which created Bnei Yisroel) was not the way it
would be after Matan Torah (see Mforhim Yuma 28b), especially according to
Rashi Breishis 48:9.

I would venture that the same answer the Mogein Avrohom (240 s"k 9) gives why
it wasn't Bnei Tmuroh could answer this Bdochak, especially that to Yaakov it
was not a foreign possibility see Rashi Breishis 29:18. (and see the PM"G
ibid).

BTW according to the Tosfos that the M"A brings (Yevomos 76 in the print by
mistake it says 77), what happened with Daam Bsulim, (as Meacho Betzbah would
have to be after she knew she was getting married which was first that night
see Rashi 29:25) in addition to Daam Chimud, many answers come to mind however
would like to hear some ideas  from our tallmidei chachomim on board.

Kol Tuv
Yitzchok Zirkind

********************


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