Avodah Mailing List

Volume 02 : Number 066

Monday, November 30 1998

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Subjects Discussed In This Issue:
Date: Sun, 29 Nov 1998 17:24:36 EST
From: Yzkd@aol.com
Re: eved as shliach, kinyanim on bechorah

In a message dated 11/25/98 0:06:50 AM EST, sbechhof@casbah.acns.nwu.edu

>  1. Even after Mattan Torah, shi'abud does work on davar shelo ba la'olam
>  (see the Bigdei Shesh siman 50). The sale of the bechora may welll have
>  been a shi'abud, not an hakna'a.
As R' Ben Smith already quoted the Mechabeir in C"M 60:6, there it says that a
Shibud can be valid unless the term of Mechiroh was used in the case of Yaakov
and the Bechoroh it says "Michroh" & "Vayimkor", (however perhaps once he
swore it became a Chiuv Gavroh as that is the difference between Shvuoh &
Neder).  Especially in our case what would be if Esov died first then even it
was Bgeder Chiuv Gavroh once he dies it should become Bottul Al Derech Ein
Odom Morish Shvuoh, Vyesh Layein Bozeh L'halacha.

>  2. To make this l'ma'aseh, how can a Jew participate in futures trading if
>  it is DSBL (forget about Ribis issues for now)? Must be - dina d'malchusa
>  overrides DSBL. Could be that was at work in the Mechiras ha'Bechora.

I see that BS"D this opened some discussion on the issue hope it will be
expounded in depth as there are many issues with trading stocks.
1) Holding an account with a Jewish brokerage house w/o Heter Isskoh.
2) buying on margin
3) selling short (against the box is different)
4) buying or selling options in or out of the money, covered or naked.
5) who is the other side of the trade a broker (if Jewish) or the general
6) are stocks a Davar Kotzuv if they fluctuate by the second.
7) thru many more issues, just trying to help sort this out.

> Just Thughts


Kol Tuv
Yitzchok Zirkind

>  Just thoughts!

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Date: Sun, 29 Nov 1998 17:24:29 EST
From: Yzkd@aol.com
Re: Sheva berachot - real derasha or asmachta?

In a message dated 11/27/98 9:22:36 AM EST, C1A1Brown@aol.com writes:

> Rashi and Ramban bring down the Yerushlami that learnes sheva berachos from
>  'shavua zoas' in our parsha.  

The Limud in Yerushalmi is that Ein Marvin Simcho Bsimcho, we deduct that
there was Simchas Yemei Hamishteh (Sheva Brochot is not mentioned as far as I

> I was thinking one
>  could argue that both dinim are d'otayta and the yeruslami actually works 
> well
>  l'shitaso - aveilut d'orayta (like shittat BaHaG - Tos. Berachot 47b) is
>  nidche bec. sheva berachot is also learned from a real derasha d'orayta.
>  (similar to the RaMaH's defense of BaHaG in Rosh P"K of Kesubos).
Betzem it is a very nice Chaap, however Bnogeia to Shivaas Yemei Hamishtoh I
don't think that the Yerushalmi holds that it is Doreisoh (even if Ein Marvin
SB"S is Doreisoh), as the Baal Hamamor in the Yerushalmi (M"K 1:7) is Rabi
Yaakov Bar Acho, the same one that learns Aveilus from a Possuk after Matan
Toroh because Ein Lmeidin Mkodom Matan Torah (Yerushalmi M"K 3:5), and see the
Maareh Haponim Yerushalmi M"K 1:7 as to why EMSB"S can be learned from before
Matan Torah as that is logical.

Kol Tuv
Yitzchok Zirkind

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Date: Sun, 29 Nov 1998 17:24:22 EST
From: Yzkd@aol.com
Re: Avodah V2 #63

In a message dated 11/27/98 8:17:13 AM EST, turkel@math.tau.ac.il writes:

> What do you mean by infallible?
>  Rambam says that the stars are living creatures.

Lo Al Horambam Tlunoscho the Mokor is the Sifree Bhalosicho 12:6.
And see Rashi Shoftim 5:20,23 and Rashi in Moeid Koton 16a.
In any case see the Piush Al Asar in the Rambam.

>  Rash on the mishna in Kilyaim states that the Pythagores theorem is wrong
>  (Beit Yosef is already startled by this) and Rashi at least does not
>  use this theorem. There are other such examples.
IMHO Irvuv Parshiyos Nemru Kaan, and see Tiferes Yisroel on the Mishnoh, for
all Deios see also Encyclopedia Taalmudis Erech "Adnei Hasodeh".

Kol Tuv
Yitzchok Zirkind

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Date: Sun, 29 Nov 1998 20:59:58 EST
From: C1A1Brown@aol.com
Re: kiddushei taus of Ya'akov

<< IMHO both are Shver to say that Beoh Rishonoh was reduced to Znus R"L,<<<

Maybe it wasn't znus bec. Ya'akov was m'chavein for ishus, as was Leah.  Znus
for a B"N is only if both parties were not doing it l'shem ishus.  I'm still
not satisfied that YGB's Yerushalmi that says ishus of a B"N doesn't need
kavanah solves anything.  By analogy: I go to a store and buy apples.  I have
'kavanah' to pay and hand over the money - and then accidentaly walk out with
a bag of oranges.  Its not the intent (kavanah) to buy is lacking, but its
that sale of apples itself never took place.  Ya'akov had kavanah for ishus -
but that ishus w/ Rachel never occurred.

 >>>say that Nissuin of the Ovos (which created Bnei Yisroel) was not the way
 would be after Matan Torah  especially according to  Rashi Breishis 48:9.<<<

Post mattan Torah marrying 2 sisters would be assur, yet Ya'akov did it (I
don't think we need to go through the whole Parashas Derachim and debate this;
I'm just raising a possibility) Re: Yosef, maybe it was a special din in
getting the beracha (see Levush HaOrah there).
>>> I would venture that the same answer the Mogein Avrohom (240 s"k 9) gives
 it wasn't Bnei Tmuroh could answer this Bdochak,.<<<

Tmurah is not a din in da'as or kavannah, it just means not having a different
person in mind - no?
 >>>BTW according to the Tosfos that the M"A brings (Yevomos 76 in the print
 mistake it says 77), what happened with Daam Bsulim,<<< 

Perhaps dam besulim is tamei only if it because of biya, e.g. see IG"M Y"D 87,
otherwise it is dam makah.  Dam chimud is harder to answer - maybe since Leah
thought she was meshudechet already to Eisav there is no longer a problem of
chimud even though the chassan is now changed (I admit that's a dochak).


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Date: Sun, 29 Nov 1998 23:39:16 -0600 (CST)
From: Cheryl Maryles <C-Maryles@neiu.edu>
Re: Avodah V2 #63

On Sun, 29 Nov 1998 Yzkd@aol.com wrote:

> In a message dated 11/27/98 8:17:13 AM EST, turkel@math.tau.ac.il writes:
> > What do you mean by infallible?
> >  Rambam says that the stars are living creatures.
> Lo Al Horambam Tlunoscho the Mokor is the Sifree Bhalosicho 12:6.
> And see Rashi Shoftim 5:20,23 and Rashi in Moeid Koton 16a.
> In any case see the Piush Al Asar in the Rambam.
I must have missed this the first time around, because it is clear that
the stars are in fact living creatures. Not as defined by scientific life.
but most definitly spiritually alive. see Rabbi Aryeh Kaplans essay
Astrology: Stars and angels in his book immortality, resurrection and the
age of the universe. He quotes the abarbanel devarim 18:24 who writes that
angels are souls to the stars. He compares the human souls dwelling in the
physical body to the angels souls dwelling in the physical body of the
star---so in a sense the stars are as alive as we are. To fully grasp the
concept one must read the whole article, in general I have found Rabbi
Kaplan particularly satisfyiong because he knew more science and Torah (at
least the agadaic portions if not halacha)
then most people of our (or the past)generation.
Elie Ginsparg

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Date: Mon, 30 Nov 98 7:43 +0200
From: BACKON@vms.huji.ac.il
RE: Avodah V2 #65

RAMBAM and DIVREI SOFRIM: See the Iggrot Moshe Orach Chayim Chelek Daled 60
where he explains that the Rambam called *divrei sofrim* anything that was
not MEFURASH in the Torah "AF SHEHU D'ORAITA".


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Date: Mon, 30 Nov 1998 10:34:02 +0200
From: Moshe Koppel <koppel@netvision.net.il>
Rambam on Divrei Sofrim

Daniel Eidenson wrote:
>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?

This is hardly a sugya that invites boich svaros since just about every
major and minor rishon and acharon has something to say about it. While it
is true, as Daniel Eidenson has pointed out, that many commentators have
interpreted the Rambam kefshuto as meaning derabonon, it should also be
pointed out that (at least as far as the rishonim go, esp. the Ramban) this
was mainly to shlog him up. Once the Rashbatz (late 14th century; please
forgive the goyish dates, I'm just sparing us all the effort of adding 240)
popularized the view that divrei sofrim for the Rambam are some kind of
crypto-deoraisa category this became the universally-held view at least
until the Lev Sameach in mid 17th century. (A nice historical summary of
all the views on this matter can be found in Yakov Yekusiel Neubauer's
"Ha-Rambam al Divre Sofrim" published by Mossad HaRav Kook.)

The difficulty with each interpretation can be briefly summarized as follows:
The Rambam couldn't have meant that halachos learned via drashos are "only"
derabonon because this view seems to undermine the authority of chazal and
runs against all our intuitions about halachic process. Moreover, as
pointed out by "raffyd", the Rambam himself is mechayev misa on the basis
of kidushei kesef (in Hil. Ishus and, more clearly, in Hil. Mamrim). On the
other hand, he couldn't mean deoraisa because he often uses the term divrei
sofrim for unambiguously derabonon cases (as Daniel Eidenson explained).
Moreover, there is actually one case where the Rambam draws a nafka mina
lemaiseh between psulei edus that are deoraisa and those that are "divrei
sofrim" because learned from a limud (Hil. Eidus 13:1).

The currently fashionable view, at least among more "academic"
commentators, is to take the Rambam at his word that he means derabonon (as
he himself insists in his letter to Rav Pinchos HaDayan; see Igros HaRambam
[ed. Y. Shailat p.451]). The ideological difficulty can be somewhat
mitigated by noting that for the Rambam the difference between derabonon
and deoraisa as far as chumras hadin is almost non-existent. For example,
against most poskim, he holds that in principle safek deoraisa is lekula
just like safek derabonon (but chazal were often, not always, machmir by
safek deoraisa). [The famous klal of R. Yehoshua ben Korcha "min haTorah
halech achar hamachmir" refers to safek in hachra'ah not safek in metzius.]
The important difference for the Rambam between deoraisa and divrei sofrim
is not at the level of chumras ha-issur but rather regarding the
meta-halachic questions concerning whether such halachos can be undone by a
later beis din, whether one must identify the halachah as not explicit in
the Torah (so as not to violate bal tosif), safek in hachra'ah etc. There
can be no doubt at all that with regard to these issues the Rambam treats
halachos learned via derashos as not being deoraisa (Hil. Mamrim 2:1). More
on this view can be found in Ohr Same'ach on Hil. Mamrim 2:1; R' Y. I.
Halevy, "Doros HaRishonim", Chelek Daled from page 514; R' N. Rabinovich's
article in "Sefer Higayon".

The outstanding problem concerning chiyuv misa on the basis of kidushei
kesef is easily handled. While chazal were responsible for defining kesef
as a viable means of kidushin the "chalois" is nevertheless complete (i.e.,
no different than kidushin deoraisa). This is always the case where chazal
were allowed to determine the means of effecting changes in status, such as
kinyanim. (Otherwise every object would be owned by ploni mi-deoraisa and
almoni mi-derabonon and this business would iterate with each sale, etc. In
short, a catastrophe.)

Many commentators, most famously the Kesef Mishnah, have noted that R'
Avraham ben HaRambam attests that the Rambam changed his view on kidushei
kesef and eventually agreed that it is deoraisa. There reportedly are (or
were) kisvei yad in the Rambam's own hand which indicate such a change of
mind. But this doesn't diminish the need for the above svara since it is
clear that the Rambam was mechayev misa on the basis of kidushei kesef even
when he held that it's derabonon. 

-Moish Koppel

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Date: Mon, 30 Nov 1998 11:46:20 +0200
From: Daniel Eidensohn <yadmoshe@netmedia.net.il>
Divrei Sofrim

BACKON@vms.huji.ac.il wrote:

> RAMBAM and DIVREI SOFRIM: See the Iggrot Moshe Orach Chayim Chelek Daled 60
> where he explains that the Rambam called *divrei sofrim* anything that was
> not MEFURASH in the Torah "AF SHEHU D'ORAITA".

The Igros Moshe is trying to explain why using a Shabbos clock is prohibited
because it is zilusa d' Shabbos. That Zilusa D'Shabbos is violating a doreissa
din of  Kavod Shabbos that has been explained by the prophets. He cites the
Rambam (Hilchos Shabbos 30 1) as proof " 4 Things are stated concerning
Shabbos. Two are from the Torah and two are from divrei sofrim that have been
explained by the nevi'im. Since it doesn't say that the nevi'im made a takana
this implies that the second group is really doreissa and the Rambam is using
the term divrei sofrim in his characteristic way that he calls all things which
are not mefurash in the Torah - divrei sofrim.".  He concludes from this that
using a shabbos clock is an issur doreissa. However, he exempts use for light
because this has already become accepted practice and is even viewed as kavod -
even though it is  appropriate to be machmir..

By the wide spread use of airconditioners etc on timeclocks I don't thing Rav
Moshe's interpretation is accepted. Of course that doesn't mean that his
understanding of the Rambam is not accepted but rather his application to
Shabbos clocks. He used to lament that the world readily accepted his kulas but
not his chumras.

But it is a very good illustration of the problem. How do you understand the
Rambam's use of divrei sofrim? It would seem from Rav Moshe that if the Rambam
had simply said that 2 are doreissa and 2 are divrei sofrim - that divrei
sofrim would mean derabbonon. But since the Rambam added the words that they
were explained by the nevi'im - rather than they were decreed by the nevi'im -
that means that divrei sofrim means doreissa. Does divrei sofrim have a precise
meaning or is it totally dependent upon context?

There is a major issue underlying the problem of what divrei sofrim is. That is
the issue of the role of chazal in not just transmitting Torah but creating it.
Hirsch (Letters 31 page  232) strongly criticizes the Rambam's definition of
divrei sofrim - noting that the Reform movement based itself on the Rambam to
destroy the whole foundation of the Oral Law i.e. it was the creation of
chazal. The issue of the Oral Law has been a problem since Sinai when the Jews
refused to accept the Oral Law but only wanted the Written Law.(Tanchuma
Noach). My concern is primarily that we all accept that we are dealing with a
very complex and important problem.

I just want to expand a bit on my request for more thought and research before
hitting the send button. This group is more than just a chance to relax and
shmus in between work assignments. It provides a chance for enrichment and
elevation.  On the other hand a poorly thought out response can waste time the
minutes that it takes to read it but more problematic is that it can mislead
those who accept the validity of the assertions.  The difference between a
quality impact on a fellow members life and a negative impact is often
determined by  the 10 minutes it takes to look up a source or think how to word
a response.

                                 Daniel Eidensohn

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Date: Mon, 30 Nov 1998 08:38:52 -0600
From: "Richard K. Fiedler" <dfiedler@enteract.com>
Ten Jewish Women

Ten jewish men together are told on Shabbat to cook up a pig stew, set a
banquet, and celebrate with Mr. Terrible or else they will be horribly

I presume we all agree they elect to die.

What is the Halacha for ten Jewish Women?
    Dick Fiedler    dfiedler@ibm.net
    Skokie Il   (847) 329-9065 Fax (847) 643-0582       /\
    Efrat Israel  (02) 9932706  Fax (02) 9932707    \--/--\--/
        .. __o    __o    __o    __o    __o    __o    \/    \/
       .. -\<,   -\<,   -\<,   -\<,   -\<,   -\<,    /\    /\
      ..(_)/(_)(_)/(_)(_)/(_)(_)/(_)(_)/(_)(_)/(_)  /--\--/--\

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Date: Mon, 30 Nov 1998 07:15:45 -0500
From: richard_wolpoe@ibi.com
TY Shekolim

How did it happen that the one masechto of yershalmi that got published with the
Bavli was Shekolim?

And rwhen r. Meir Shapiro insituted daf yomi, what prompted him to include the 
TY shekolim?  Was it simply because it was published together with the TB?

Rich wolpoe 

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Date: Mon, 30 Nov 1998 11:01:40 -0500 (EST)
From: Sammy Ominsky <sambo@charm.net>
Re: thanksgiving

My apologies. In re celebrating birthdays recently, I mentioned from
memory a Ben Ish Hai, (Parshat Re'eh, first year, #17).

Well, to back up R. Daniel's request that we take the time to check the
sources before quoting...

He does not say a bat mizva should have a party to celebrate, and in fact
explicitly says we do not have a minhag to have a seudah, but that she
should dress in her Shabbat clothes and say shehehianu on something.


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Date: Mon, 30 Nov 1998 11:15:38 -0500
From: "Noah Witty" <nwitty@ix.netcom.com>
Re: Avodah V2 #65

I was taken aback to find that just as I was about to concede to D.
Eidensohn's reading of Shoresh #2, someone thought that I might be correct
in my reading of same. There's a lesson in that for the thin line between
tenacity and hubris.
Re: chillul hashem and protesting: Rabbi Meir Stern (Passaic, NJ) noted the
gemara Shabbos in which the the only time a good g'zaira was rescinded was
when tzadikim failed to protest evil conduct despite the uncertainty of the
efficacy of the protest. And as a matter of logic, if you were to paint
every protest by chareidim as a chillul hashem because the secular and
non-Jewish world and media think the protest unseemly, you will have wiped
out all macha-a of deviations from halacha and torah by simply because the
deviants are the numerical majority.  There are several letters by  Rav A.Y.
Kook which are useful paradigms of the tone which such protests *may* take.
C. Brown writes: "I'm absolurtey perplexed by Rachel stealing terafim -
gezel is assur even for
a ben Noach!  Anyone have some ideas?  " Proposal: If trafim are A"Z (also
assur for a ben-Noach, which Lavan was), perhaps they have no value and
therefore no ownership with respect to gezel.

Question for discussion: Halakhic triage: I am at the bus station on the way
to my homebound commute.  From the stop in my home town, I will make my way
direcetly to a shiur.  The shiur is a weekly, regularly-scheduled shiur said
by the same individual.  There is no tape; there are notes taken the
reliability of which is about a grade of "B", though I have never reviewed
the notes even for those shiurim that I was constrained to miss due to
working late, illness, simcha, travel. If I am not at work or at the shiur,
my wife--reasonably--expects that I should be home.  She gives me permission
to attend the shiur and she awaits my arrival.  (Hey! That sounds like a
gemara I know . . . . Sorry, D.E.) At the bus station, I spot what is
obviously an Orthodox young man shlepping his suitcases.  Oh baby, I've been
there! so my heart goes out to him. BUT, if I stop to help him in a limited
fashion, e.g. give directions, obtain information, I calculate I will miss
one bus yet still be on time for the shiur. (If early for the shiur, I would
not in any event stop at home first, nor does my wife expect me to.)  If I
actually accompany him to the gate, I anticipate that I will be late for the
shiur.  Bear in mind that he got this far w/o me.  He does not appear
otherwise disabled, yet it is apparent that he has just enough baggae that
he is dragging at least one piece rather than carrying everything (w/o
touching the ground). How far does this prika-t'eena or chesed or nosay b'ol
im chaveiro (literally) go versus my T.T. obligations and those to my
household. Your comments and other issues related are welcome.
--Noach Witty.

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Date: Mon, 30 Nov 1998 12:31:34 EST
From: Yzkd@aol.com
Re: gezel of terafim

In a message dated 11/28/98 9:54:42 PM EST, C1A1Brown@aol.com writes:

>  I'm absolurtey perplexed by Rachel stealing terafim - gezel is assur even 
> for  a ben Noach!  Anyone have some ideas?  
Since the T'roffim were Avodoh Zoroh, which is Ossur Bhano'oh Rochel felt that
there is no issur gezel by it, see Encyclopedia Taalmudis Erech Issurei
Hano'oh Machlokes Horishonim if by Issurei Hano'oh there is Issur of gezel,
even according to those that hold that it is prohibited to take as there is
Baalus even on issurei Hano'oh for a B"N it may be ossur.  Yaakov OTOH said
Im...Lo Yichyeh (31:32) perhaps Paskened that since Bittul helps then even for
a B"N this is Ossur as Gezel. 

However the question remains how  could Rochel bring them into her possession
(lo Yidbak Byodcho), perhaps in addition to that she just planned to destroy
them, she may have Bdavkoh not told Yaakov that way she isn't Koneh as what a
wife acquires goes to the husband, and Yaakov didn't acquire it as it was
against his will, (and perhaps in that case Bittul by another goy in Eretz
Yisroel would help to make it usable).

Another point Lo Signov Al Mnas Lmeikat or Lhoshiv perhaps doesn't apply to
B"N (and she had in mind to return them either after he sees he can live
without them etc. in which her Kavanah of seperating him from A"Z would be

Another Sevoroh since by serving A"Z he is Mchuov Missoh she was obligated to
take away the Sakkonoh as this A"Z would have the Geder Rodeif (remember
discussion if by B"N there is the Geder of Rodeif).

According to those that hold that the Trofim were not (all) A"Z perhaps they
learn that Pshat in 31:15 is that Ovid Inosh Dinoh Lnafshei (need to see if
this applies to B"N).

Kol Tuv
Yitzchok Zirkind


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Date: Mon, 30 Nov 1998 12:31:30 EST
From: Yzkd@aol.com
Re: kiddushei taus of Ya'akov

In a message dated 11/29/98 9:00:14 PM EST, C1A1Brown@aol.com writes:

WRT the Sevroh that since they both intended Isshus it is OK, since when
Afk'inu Rabbonon Kiddushim Minei it  becomes Lmafreia a  Bias Znus, I am still

>  Post mattan Torah marrying 2 sisters would be assur, yet Ya'akov did it,

As you mentioned not to go into the whole Arichus, nonetheless see the
Maharsha in Yumoh that they were sisters from Lavan but 2 different mothers
once they were married and Nisgayeir they aren't 2 sisters, although a ger is
not allowed to marry his converted sister that is because Shelo Yomru Bo'nu
Mkdusho Chamuroh Lkdusho Kalo, since even as a B"N we go after the mother they
were never considered sisters Lhalacha.
>  Tmurah is not a din in da'as or kavannah, it just means not having a 
> different
>  person in mind - no?

Yes! but who's face did he have in mind (they didn't look exactly alike 29:17)
so too Lgabei this Guf there was no Mekach To'us, (this is just a deeper point
on the point that you said that there was Kavanah Lsheim Isshus, but that on a
certain aspect he may have never regreted), in any case I wrote originally
that this is a Dochak.
>  Perhaps dam besulim is tamei only if it because of biya, e.g. see IG"M Y"D 
> 87,
>  otherwise it is dam makah. 

Very nice!

> Dam chimud is harder to answer - 

See Rashi 30:17 (akin to Rashi 29:21), perhaps by her there was no chimud in
the regular sense (as to why Yaakov wasn't Chosheish Yaakov thought this was
Rochel with which marriage was discussed earlier), the question arises once
Rochel saw that Leah was given why shouldn't apply the Din of breaking a
Shidduch which at renewal there is again Chashash, to which we can say, that
neither Yaakov or Rochel gave up.

Kol Tuv
Yitzchok Zirkind

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Date: Mon, 30 Nov 1998 22:32:15 EST
From: Chaimwass@aol.com
Re: Avodah V2 #65

In a message dated 11/29/98 6:15:07 PM Eastern Standard Time, owner-
avodah@aishdas.org writes:

<< Eli Turkel wrote:That leads to the question - are there any objective
standards for
 determining what is a chillul hashem? >>

Seemingly not when we consider Yoma 86a where Rav felt that asking his butcher
for credit in the purchase of meat would be for him chillul Hashem. And Rav
Yochanan similarly indicated that four amos for him without Torah and tefillin
would be a chillul Hashem.

Chaim Wasserman

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