Avodah Mailing List

Volume 05 : Number 034

Wednesday, May 3 2000

• Heter Mechirah
• Re: Yom Tov Sheni
• Subject: RE: Lo S'Choneim (was Re: aniyei ircha)
• Re: Sources on each word divine
• xtianity
• shoah and medina
• talmidei chachim marbim shalom baolam
• Re: shoah and medina
• Re: Redeeming your son v. buying an etrog
• Re: Dor Revi'i and the BaH on b'khol m'odekha
• Re: Avodah V5 #30
• Re: Lo S'Choneim (was Re: aniyei ircha)
• Re: Lo S'Choneim (was Re: aniyei ircha)
• Re: Lo S'Choneim (was Re: aniyei ircha)
• Re: Lo S'Choneim (was Re: aniyei ircha)
• Heter Mechira (was Re: Lo S'Choneim (was Re: aniyei ircha))

On Mon, May 01, 2000 at 12:46:39PM -0400, Stein, Aryeh E. wrote:
:                                    Of course, at the same time, it is
: important to also take into account whether a person is being machmir, or if
: a person is choosing to not rely on a kula.

First, any Avodah return to the subject of chumros should include a pointer to
RYGB's '98 JO article <http://www.aishdas.org/avodah/vol02/v02n079.shtml#08>.

We must also note the difference between a heter and a kulah, also complicated
by the fact that the latter is used pretty broadly in common parlance. Being
meikil could be anything from having a difference in p'sak, such as for
Bet Yosef meat; a community not accepting a takkanah, such as monogamy;
or denoting the absence of a minhag or of a hanhagah tovah.

-mi

PS on the shaving issue: I refer people back to R'
Michael Broyde's article about shaving on chol hamo'ed at
<http://www.aishdas.org/avodah/vol02/v02n014.shtml#10>.

-- 
Micha Berger (973) 916-0287          MMG"H for  2-May-00: Shelishi, Kedoshim
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Rosh-Hashanah 33b
For a mitzvah is a lamp, and the Torah its light.         

Carl Sherer [sorry for all the times I misspelled your name - dg] wrote:

<<<
Now, I'm curious. I always understood that people like Rav Goren, 
who held that chutznikim in Eretz Yisrael could hold one day of 
Yom Tov, did so on the grounds that what is kovea how many days 
of Yom Tov you keep is your location and not your permanent 
residence. If so, shouldn't they hold that Israelis in Chutz LaAretz 
should keep two days?
>>>

I had the same thought.  However, the issue is minhag avoseichem
b'yodeichem.  The minhog of those living in chutz la'aretz was always
not to observe yom tov sheni when they were in eretz yisrael.  The
minhag of those who lived in eretz yisrael was always to observe
yom tov sheni when they were in chutz la'aretz.  That argues 
against R. Goren's position.  The only way to have it both ways 
would be to say that minhag avoseichem was applied only to b'nei 
ha-golah, whereas b'nei eretz yisrael had no minhag of observance 
of yom tov sheni other than the occasional s'feika d'yoma when they 
happened to be outside eretz yisrael.  The takana of Chazal therefore 
did not apply to them at all, only to the b'nei ha-golah.  B'nei eretz 
yisrael are governed by s'feika d'yoma wherever they are, so the only 
issue for their observance of yom tov sheni ba-golah is maras ayin.  
Whether one understands the shema tiskalkel (or whatever term the 
gemara uses) as the motivation for the principle of minhag avoseichem 
b'yedchem or a separate rationale might also come into play.

David Glasner
dglasner@ftc.gov

>I'm not sure RSZA would agree with that. I think the case posited 
>was that the husband decided to be machmir only for himself, but 
>to continue to benefit from his wife's use of the eruv, i.e. to treat his 
>wife as a Shabbos goy. I think if the husband wanted to be 
>machmir on the entire family the response might have been 
>different.

Perhaps a more accurate understanding would be that the husband wanted to
take on a chumrah, but did not wnat to impose it on his wife and family.
The lesson would then be, that while it is laudable to be a Baal Nefesh,
doing so at someone else's expense defeats the purpose.

Gad Frenkel

[Evidently, Micha feels this topic should be in Areivim]

{ Looking at it again, I'm not sure why. So, I'm bumping it back to Avodah.
Please be patient, I'm still new at this. -mb }

RM Rudner wrote:

>>Ibn Ezra feels that the last 13 verses were written by Joshua. What does he 
hold with regards to the rest of the Torah?>>

If that is what the Ibn Ezra means, he is essentially following the gemara in 
Bava Basra 15a but extending it from the last 8 verses to the last 12.  
Interestingly, it seems like the Mishnah Berurah (428:21) prefers this opinion.

Regarding the rest of the Torah, the Ibn Ezra is pretty clear in Bereishis 36:31
that he considers it ALL to have been written by Moshe.  Someone named Yitzchaki
(not Rashi) suggested that certain phrases were written later (e.g. ad hayom 
hazeh) and the Ibn Ezra says that his name is Yitzchaki because 'kol hashome'a 
yitzachak lo'.

> 
> So, how do we deal with this?  Do we accept the view of Chazal at face value
> against all historians?  Do we reject these gemaras as history and accept them
> as aggadata?  Have frum historians like R. David Berger said anything about
> this?
> 

How reliable are these gemaras given the cesorship over the years?

There is a gemara that implies that Yeshu lived at the time of Shimon
ben Shetach
rather than at the time of Hillel when everyone else places it.
In fact Rav Ovadiah Yosef uses this gemara to allow the use of the
secular calendar
since according to the gemara it is now 2000 years from someone else not
the
founder of xtianity.

I don't know of any secular scholar, including Berger that takes this
gemara at
face value. Either it is talking abouts someone else (yeshu was a common
name) or
it was altered by censorship.

Eli Turkel

in chief rabbi lau's remarks today  he commented  [not an exact quote] if
there had been a homeland for the jews the out come would have been
different.  my understanding is that this idea is counter to standard
chareidi thinking.  e.g.  the idea of saying ' never again' is wrong because
it's up to hashem---- and maybe the outcome would would have been the same
just the location of the camps different.
am i correct in this approach as representing a  more 'modern' or
non-chareidi approach?  [  lehavdil elefalfei etc see the approach of a
masorti  leader in the JPost today---classic  god was not in the holocaust
thought

> Subject: "Talmidai chachomim marbim Shalom Ba'olam"
> 
> On Sun, Apr 23, 2000 at 11:27:00PM -0400, S Klagsbrun wrote:
> > An old yid (A"H) taught me: shtait in Mishnah: "Talmidai chachomim
> > marbim shalom ba'olam". oib nit, as nit. V'hamaivin Yovin.
> 
> My father A"H would quip that the Mishnah merely proves that Chazal had
> a sense of Humor! Besides, since this statement is followed by
> "she-ne'emar..." proves that this position is by no means obvious!
> 
They say it the name of Rav Kook zt"l tha the explanation is that
talmidei chachamim are always fighting and then making up.
Hence they are marbim shalom because it happens all the time.

Eli Turkel

In a message dated 5/2/00 3:22:51 PM Eastern Daylight Time, 
Saul.Z.Newman@kp.org writes:

<< n chief rabbi lau's remarks today  he commented  [not an exact quote] if
 there had been a homeland for the jews the out come would have been
 different.  my understanding is that this idea is counter to standard
 chareidi thinking.  e.g.  the idea of saying ' never again' is wrong because
 it's up to hashem---- and maybe the outcome would would have been the same
 just the location of the camps different. >>

I'd be surprised if this were truly the case but would be interested in other 
responses. I've been thinking about this since my father's HK"M ptira.  It 
seems to me clearly inappropriate to say things like it's too bad that it 
turned out that way or some such remark which implies had you been HKB"H, at 
that moment , you would have done things differently(ie HKBH erred 
kaviyachol). However LA"D it wouldn't be kfira to say (for example) that one 
wishes they could go back in time and be a better Jew etc. so that in the 
zchut of those deeds HKB"H would change the gzar din.

Similarly (althoiugh one could argue a difference between individual and klal 
destiny) one could argue that the broad goal(not that we ever really know 
this) was a Yishuv eretz yisrael and had we gone willingly.....  I'm not 
saying this was the case , only that it is one of an infinite number of 
possible reasons which we can never know.

R"YBS(why isn't it YDS(yosef dov) ) Held that it was a time of hester panim 
but I can't tell you I fully understand what leads to hester panim. 

 Kol Tuv,
Joel Rich

In hilkhot etrog S.A. O.H. s. 658, the nosei keilim mention the halakha 
based on a gemara in kidushin 29a, that one who has only enough 
money to redeem his son from captivity or to buy an etrog for Sukot is
obligated to buy the etrog, because the etrog is a mitzvah overet and
redeeming your son is a mitzvah she'einah overet.  

ani omed mishtomeim.  How could one possibly suppose that the only 
relevant factor in deciding what to do in such a situation is which 
mitzvah is overet?  The only way that I personally can
reconcile this conclusion with common sense and common
decency is to assume that Chazal must have taken it for granted
that, l'ma'asseh if has v'shalom confronted with such a choice, 
rahmanim b'nei rahmanim would always use midat ha-rahamim to 
negate the midat ha-din and redeem their sons from captivity ASAP
regardless of what they were supposed to do al pi halakhah.

The Dor Revi'i, to my knowledge, did not discuss this halakhah.  But I
wish he had.

David Glasner
dglasner@ftc.gov

Toby Rubinson (4:473) wrote:

<<<
David Glasner has recently made a number of posts using the Dor Rivii as his 
source. The Dor Rivii was unquestionably a tzadik and a Gadol, but the fact 
remains that in his positions on numerous issues he remains a daas yachid 
among gedolei yisrael. David is surely entitled to follow his distinguished 
ancestors positions and advocate that others do so as well, but that does not 
mean that these thoughts and practices are normative. The normative position 
is that one may not save a non-Jew for any reason other than Eivah and that 
one must lose all of his money rather than transgress a negative commandment, 
and the Dor Rivii's argument is addressed and refuted by the Bach. 
>>>

The reference to the Dor Revi'is argument concerning the obligation to sacrifice
one's wealth rather than to transgress a negative commandment is to his
discussion in the petiha to Dor Revi'i (25a-26a) where he raises a question 
based on a famous beraita in yoma and sanhedrin which asks why it was 
necessary for the to Torah to write b'khol m'odekha if it already said b'khol 
naphshekha.  The beraita answers that since there are those for whom their
wealth is more precious than their lives, it was necessary to write both
naphshekha and m'odekha.  The Dor Revi'i concludes from this that the 
obligation to sacrifice one's wealth is the same as the obligation to sacrifice one's
life.  One is obligated to do so rather than commit the sin of idolotry but one is
not obligated (and according to the Rambam forbidden) to do so rather than 
transgress any other negative commandments (save two).  He goes on at 
length to try to reconcile this conclusion with the mishnah in kol kitvei which 
seems to prohibit extinguishing a fire on the Sabbath if there is no danger to
human life.  His two basic conclusions are 1) ones mamon sh'mei ones (contrary
to the Rivash s. 387) and 2) that to avoid perpetual impoverishment and 
dependence on charity to support himself and his family, one might be permitted to
transgress a negative commandment one time.  (Poverty or the threat of poverty
would not be an extenuating circumstance for repeated transgressions.)

As Mrs. Rubinson pointed out, the BaH also discusses this question in his
commentary on the Tur, O.H. s. 656.  It is very surprising that the Dor Revi'i
did not mention the BaH, since it is difficult to imagine that the Dor Revi'i
would not have been aware of this BaH.  But there is no point in speculating
on this.  Mrs. Rubinson feels that the BaH's discussion refutes the 
argument of the Dor Revi'i.  After reading and thinking about the BaH for
several weeks, I would like to suggest why I don't believe that to be the
case.  I quote the relevant BaH in its entirety.  (Luckily, he is quite 
succint this time.)

ika l'meidak mi-yoma (82a) u-v'perek ben sorer u-moreh (sanhedrin 74a) im
ne'emar b'khol naphsekha lamah ne'emar b'khol m'odekha?  l'phi she-yesh
adam she-haviv alav m'mono mi-gupho, l'kakh ne'emar b'khol m'odekha.  
v'hatam ba'avodah zarah k'amar d'yehareg v'al ya'avor.  u'mashma d'b'sh'ar
lo ta'asseh ein lo l'haphsid kol m'mono.  v'yesh lomar d'aderabah mi-sham 
ra-ayah d'im lo ken mai kashia lamah ne'emar b'khol m'odekha, ha itztrecha
lei l'lamed d'davka mi-shum avodah zarah yaphsid kol m'mono v'lo ya'avor
aval sh'ar mitzvot lo ta'asseh ya'avor v'lo yaphsid.  ela vadai d'ein hiluk 
u'l'kakh ka kashia lei lamah ne'emar b'khol m'odekha.

The argument of the BaH is very ingenious.  What he says is that if the
Torah had written only b'khol napshekha without b'khol m'odekha, then,
knowing that one may not transgress a negative commandment even to 
save all one's wealth, we would have interpreted the verse to mean that 
one must sacrifice all his wealth as well as his life rather than commit the 
sin of idolotry.  Therefore, the beraita is asking what we learn from the words 
b'khol m'odekha.  To which the answer is that since to some people wealth 
is more precious than life, one might have said that the words b'khol 
napshekha teach us that just as one is obligated to sacrifice his life only to 
avoid committing the sin of idolotry, so, too, one is obligated to sacrifice his
wealth only to avoid committing that sin.  And one would then be allowed to 
save his life or his wealth by transgressing other sins.  So by including b'khol 
m'odekha, the Torah teaches us that one really is obligated to sacrifice
all his wealth rather than to transgress any negative commandment, not
just the sin of idolotry.

However ingenious, the argument simply does not hold up to scrutiny.  
The problem is very simple, because the BaH begs the whole question
by assuming that we somehow have an independent source from which
we know that one is obligated to sacrifice all his wealth rather than
transgress any negative prohibition.  But that is just what we do not 
have.  There is no scriptural source for that principle.  Perhaps it is a 
sevara.  But, by the BaH's own admission, it is a weak sevara, because
there is a counterargument that requires a specific limud to prevent us
from making the counterargument.  What kind of a sevara is so 
compelling that it requires a limud to prevent us from adopting the opposite 
sevara?  Besides we have a well-known principle of Hazal that ani hashuv 
k'meit that directly contradicts the BaH's sevara, not to mention the possibility 
that unending poverty might well be considered a worse fate than a quick 
death.  If, in fact, we do not have a source from which we know independently 
that one is obligated to sacrifice all one's wealth rather than transgress a 
negative commandment, there is no reason not to read the beraita in the 
intuitive way that the Dor Revi'i does and the BaH would have had he not felt
obligated to read it in the convoluted way he proposes.  

Sofo shel davar.  One may or may not accept the argument of the
Dor Revi'i about whether there is ever a heter for transgressing a 
negative commandment to avoid being impoverished.  But I do not
believe that the BaH has in any way refuted him.

David Glasner
dglasner@ftc.gov

In message , M. Press <mpress@ix.netcom.com> writes
>Shmita - one poster raised the question of mitzvo haba'ah b'aveira with
>regard to the heter mechira, implying that one could not make a brocho on
>such produce, etc.  This is not so.  Even if one were to violate the
>prohibition of lo sechanem in selling the land, produce grown on it would
>have nothing to do with the problem of mhb. 

What about produce that has kedusha shevi'is but which has been sold in
violation of the strict requirements regarding sale of such produce?

> Also, the question was raised
>about the status of money that may have kdushas shvi'is.  Aside from the
>good points raised about the different nature of money in the modern
>economy, the simplest response is that since shvi'is is generally accepted
>as drabonon today, we are lenient in sfeikos drabonon.
>

Why is this not equally applicable to the produce itself? Deliberately
mix it with other produce and say we are lenient in sfeikos d'rabanon?
After all, isn't that what is being done with the money? The fact that
the people do not think there is a problem with the money when they mix
it does not change the fact that they are deliberately mixing it with
other money.  

BTW the nature of money argument only works so far - what about produce
sold for hard kesef which kesef is then used to purchase in the general
store, which money then moves on to other things.  

>Melech
>

Regards

Chana

-- 
Chana/Heather Luntz

In message <200005020526.IAA29366@lmail.actcom.co.il>, Carl and Adina
Sherer <sherer@actcom.co.il> writes
>I said I would finish responding to Chana's contentions from 
>yesterday.
>
>I don't see this as his primary view at all. In fact, based upon my 
>reading of Mishpat Cohen 58, I don't see him extending this at all 
>beyond what is needed in order to use the heter mechira. 

What I was saying was that his primary reason for getting around lo
s'choneim is via either ger toshav or a halfway house "like a ger
toshav".  That is how he tackles the question of lo s'chonein his first
page and three quarters, and then refers to one possible way of dealing
with the Rambam only at the end (not the heara, but based on the Ran in
gitten, but, as indicated, he regards it as only a butressing argument).

I agree with you, I don't think he does extend it beyond what is needed
for the heter.  I do think it is the primary grounds on which he rules
that lo s'choneim is not a problem vis a vis the heter.  

>At the 
>beginning of the same paragraph where he discusses the Ger 
>Toshav question he writes:
>
>"V'atta, *im b'emes gadol hadchak ad she'taluy bazeh chas 
>v'shalom churban ha'yishuv* nireh d'yesh le'hatir b'milsa d'rabannan 
>limkor, al pi derech ha'mechira shel chametz he'nehuga b'makom 
>dchak, v'lismoch d'Yishmaeilim she'ainam ovdei avoda zara ain 
>bahem issur chaniya ba'karka."  
>
>To me that sounds like he's saying that in a shas ha'dchak we can 
>rely on the Arabs not being considered ovdei avoda zara to sell to 
>them, and not that they have such a din generally.

Yes, but he then goes on to bring a page and a half on why they really
do have dinnim like a ger toshav.  I agree with you that he only feels
he needs to go so far, and only does go so far.  The question is though,
if the question he faced needed to go further, would he not have
followed through to go further. 
>
>In fact, he goes on to explain that the Raavad would hold that there 
>is an intermediate stage, that the Raavad holds that there is a din 
>of ger toshav with respect (only) to living in Eretz Yisrael ba'zman 
>hazeh, i.e. that it is not *assur* to sell to them. 
>
>The Raavad himself in Issurei Biah 14:8 writes that some of the 
>dinim (of not accepting geirei toshav) are le'hakel and some are 
>le'hachmir b'zman hazeh. He writes that it is permitted to sell land 
>to a ger toshav in a city (which would be assur in times of yovel), 
>but that we are *not* commanded to be mechaye a ger toshav 
>b'zman hazeh (which AIUI is why you think the Supreme Court was 
>correct, i.e. that the Arabs b'zman hazeh have a true din of ger 
>toshav, and that therefore we cannot exclude them from living 
>anyplace in Israel). 
>

Yes and no.  It is actually a separate mitzvah in the Torah to allow him
to live wherever he chooses.  If you have a half way house, as per the
Ra'avid, into which category does this mitvah fall - is it more like
being able to sell land (including in a city) or is it more like being
mechaye him.  

The difference is that being mechaye him requires you to put your hand
in your pocket, where as the other only requires you not to put up
barriers to residence of the nature of that of the Jewish Agency. 

Of course the bit Rav Hertzog picked up on is the next bit, the part
that relates to the uma shlema.  The Rav Hertzog is the third heading in
perek sheni of t'chuka l'yisroel al pi hatorah (for the main section,
but all over there) p14 of the Mosad Harav Kook 1989 edition.

Rav Hertzog clearly drives it further than Rav Kook does (or needs to
for the heter mechira).  The point is that the basic principle is there,
and it is not hard to see where Rav Hertzog is just taking it a little
bit further.

>By the way - I wrote you privately yesterday that I was curious as 
>to whether Mishpat Cohen 58, 68 and 69 came out before or after 
>Shabbat HaAretz, because you felt that what I quoted from 
>Shabbat HaAretz contradicted Mishpat Cohen. Mishpat Cohen 58 
>is dated 5660 (1900), Mishpat Cohen 68 and 69 are dated Adar 
>Sheini and Tamuz 5670 (1910), respectively (I assume the 
>reference in 69 to the Erev Shabbos "Tova HaAretz" refers to 
>Parshas Shlach). Shabbat HaAretz is dated 5670 with no specific 
>date. I believe that Shabbat HaAretz is contemporary with the latter 
>two letters,

Well it certainly proves one thing.  Whether or not Rav Hertzog was
willing to use the heara as a butressing argument for the heter, he did
not base the heter on it, as the heter was in places at least a decade
if not two before the heara was written about. 

>
>-- Carl

regards

Chana

-- 
Chana/Heather Luntz

In message , Carl and Adina Sherer <sherer@actcom.co.il> writes
>Don't get me wrong - I agree that there is something disingenuous 
>about not using an eruv but telling your wife to use it (assuming 
>that is what the person did, and I do recall the maaseh in the 
>book). But suppose the husband had said that he didn't want to 
>use the eruv at all - not for himself and not for the wife - and the 
>wife refused to stay in the house all Shabbos and therefore decided 
>on her own to use the eruv (which I don't believe is what happened 
>in that case). Would you still say he could not be machmir?

We were actually told off in precisely this circumstance.  IT was when
we were only engaged, and in Jerusalem, and we were going to some
friends Friday night - and the friends had asked us to bring them
several bottles of drink and some other food (some of it from England
and unobtainable in Israel) so I was quite heavily laden - and this man
(charedi looking, beard) stopped us in the street and said that he heard
that we were English, and what had happened to English chivalry if my
(now) husband could let me carry heavy things like that while he carried
nothing.  Now my husband is shaven and with a kippah sruga, and this
fellow's jaw rather hit the ground when his comment elicited a discourse
on width of streets, Rav Ovadiah, and not relying on a yesh omrim in the
Shulchan Aruch.  (Robert's posek will allow him to use the eruv within
the old city of Jerusalem, because of the walls, but not anywhere else
in Jerusalem - I have *not* adopted this, as I have not adopted so many
of his sephardi customs,  - BTW Rav Henkin has a teshuva on this in
Benei Banim. In short he does not deem it necessary for all customs to
be adopted, but argues that one cannot have two food standards in one
household - so we had rice on pesach, and while I can't say I ate it (I
am not really a rice fan at any time) I did cook and serve it).

>
>- -- Carl
>

Regards

Chana


-- 
Chana/Heather Luntz

In message , Carl M. Sherer <cmsherer@ssgslaw.co.il> writes
>I argue that it is not holding two different classes of persons, but 
>rather two different sets of circumstances. The ordinary case 
>(where it is assur to sell to a goy), and the shmitta case (where, 
>according to Rav Kook, it is permitted to sell to a goy for the 
>greater good of Klal Yisrael, if it is a shas ha'dchak, and then 
>preferrably to a goy who already owns land in Eretz Yisrael).
>

I guess where I am struggling to understand your position, is that your
understanding of the interrelationship in the mind of Rav Kook of the
shas ha'dchak and whatever issur there is.

Let's try to ask the questions step by step:

a) is there an issur to sell land to a goy?

b) if yes, is it from the Torah, or d'rabbanan?

c) if you answered yes to a) on what halachic basis are you pushing off
this issur? (I am aware that the chachimim have the power, b shas
ha'dchak to uproot even an issur of the Torah, like Eliyahu on har
carmel, but clearly that is not what is being discussed here)

d) why is doing it this way better than either uprooting shmitta as a
temporary measure, relying on those who hold that shmitta does not exist
even d'rabbanan b'zman hazeh or violating the d'rabbanan of shmitta (you
will agree with me that Rav Kook held that Shmitta was d'rabbanan).


e) what precisely is the shas ha'dchak?  What I mean by that is not, as
Rav Kook himself describes it shetalui b'zeh ch'v horban yishuv - but
the underlying problem that makes this heter objectionable and only to
be done in extremis.  It is quite clear that this heter is not an ideal,
even to Rav Kook, that must surely be obvious - the question is, what is
it that make the matter not ideal.  You seem  to be suggesting that it
the problem of selling a piece of land to a goy.  My reading of it that
it is not so much that, but the whole scenario of uprooting shmitta.
After all you are eliminating the shabbas of the land (all by way of
what is pretty much a trick) and all Jewish ownership in it - it is hard
to see how anybody frum person could want to do this - except in
extremis.  That, to me is the reluctance that is clearly flowing from
his words.

[BTW as an aside - I have always heard the explanation that Rav Kook
gives about the potential chorban of the yishuv were the heter not to
occur - but historically was that really the case? After all, the frum
community which was there from beforehand had previously survived
numerous shmittas, via handouts from Europe and goyishe produce or
otherwise, and the vast majority of the Zionist newcomers were not frum,
and hence would not care less about shmitta or no shmitta.  So how
extensive really were the dati kibbutzim that would presumably be the
ones to disappear?  Or was the concern really that the two economies
were now so entwined that a frum Jew could not longer live in the land
at all without encountering at some aspects of shvi'is - ie the
situation would be such that even the old yishuv could not extracate
itself? Or could no longer buy produce from Arabs because of
hostilities? Does anybody know?]

>- -- Carl

Regards

Chana


-- 
Chana/Heather Luntz

On 2 May 00, at 23:03, Chana/Heather Luntz wrote:

> Yes, but he then goes on to bring a page and a half on why they really
> do have dinnim like a ger toshav.  I agree with you that he only feels
> he needs to go so far, and only does go so far.  The question is though,
> if the question he faced needed to go further, would he not have
> followed through to go further. 

Tafasta merube....

> Yes and no.  It is actually a separate mitzvah in the Torah to allow him
> to live wherever he chooses.  If you have a half way house, as per the
> Ra'avid, into which category does this mitvah fall - is it more like
> being able to sell land (including in a city) or is it more like being
> mechaye him.  

I would argue that selling him land is more like being mechaye him. 
After all, we learn that you must allow a ger toshav to live with you 
from "imcha yeshev b'kirbecha" which is the same place we learn 
that you have to be mechaye him. They're all part of the same 
mitzva. So if you have to be mechaye him, you have to facilitate his 
living among you, and if not (as is the case today), then not.

> The difference is that being mechaye him requires you to put your hand
> in your pocket, where as the other only requires you not to put up
> barriers to residence of the nature of that of the Jewish Agency. 

Again, I think today we may be permitted to sell land to non-Jews 
(at least according to the Raavad - not according to the Rambam, 
except maybe al pi the heara), but we are definitely not 
halachically required to sell land to them in Eretz Yisrael, nor are 
we restricted from putting up barriers against selling them land.

> Of course the bit Rav Hertzog picked up on is the next bit, the part
> that relates to the uma shlema.  The Rav Hertzog is the third heading in
> perek sheni of t'chuka l'yisroel al pi hatorah (for the main section,
> but all over there) p14 of the Mosad Harav Kook 1989 edition.

I tried to look at this last night, but I'm doped up on Benadryl (you 
shouldn't know...). Bli neder will try again tonight.

> >By the way - I wrote you privately yesterday that I was curious as 
> >to whether Mishpat Cohen 58, 68 and 69 came out before or after 
> >Shabbat HaAretz, because you felt that what I quoted from 
> >Shabbat HaAretz contradicted Mishpat Cohen. Mishpat Cohen 58 
> >is dated 5660 (1900), Mishpat Cohen 68 and 69 are dated Adar 
> >Sheini and Tamuz 5670 (1910), respectively (I assume the 
> >reference in 69 to the Erev Shabbos "Tova HaAretz" refers to 
> >Parshas Shlach). Shabbat HaAretz is dated 5670 with no specific 
> >date. I believe that Shabbat HaAretz is contemporary with the latter 
> >two letters,
> 
> Well it certainly proves one thing.  Whether or not Rav Hertzog was
> willing to use the heara as a butressing argument for the heter, he did
> not base the heter on it, as the heter was in places at least a decade
> if not two before the heara was written about. 

More than that. See my other email.

-- Carl


Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

Carl and Adina Sherer
mailto:sherer@actcom.co.il

On 2 May 00, at 22:27, Chana/Heather Luntz wrote:

> In message , Carl M. Sherer <cmsherer@ssgslaw.co.il> writes
> >I argue that it is not holding two different classes of persons, but 
> >rather two different sets of circumstances. The ordinary case 
> >(where it is assur to sell to a goy), and the shmitta case (where, 
> >according to Rav Kook, it is permitted to sell to a goy for the 
> >greater good of Klal Yisrael, if it is a shas ha'dchak, and then 
> >preferrably to a goy who already owns land in Eretz Yisrael).
> >
> 
> I guess where I am struggling to understand your position, is that your
> understanding of the interrelationship in the mind of Rav Kook of the
> shas ha'dchak and whatever issur there is.

So am I, at least outside of Shmitta :-) 

> Let's try to ask the questions step by step:
> 
> a) is there an issur to sell land to a goy?

According to the Rambam, yes, except maybe under the 
circumstances described in the heara (i.e. one who already owns 
land). According to the Raavad, maybe not. According to Rav 
Kook, not for purposes of shas ha'dchak and for the good of Klal 
Yisrael, not clear in other circumstances.

> b) if yes, is it from the Torah, or d'rabbanan?

According to the Rambam, not clear. According to the Raavad and 
Rav Kook, d'Rabbanan.

> c) if you answered yes to a) on what halachic basis are you pushing off
> this issur? (I am aware that the chachimim have the power, b shas
> ha'dchak to uproot even an issur of the Torah, like Eliyahu on har
> carmel, but clearly that is not what is being discussed here)

It's only clearly an issur according to the Rambam, and I think Rav 
Kook would argue that the Rambam would not hold the issur in 
shas ha'dchak when it's le'tovas klal Yisrael. Clearly Rav Kook 
would hold that according to the Raavad it's pushed off in shas 
ha'dchak and for the good of Klal Yisrael.

> d) why is doing it this way better than either uprooting shmitta as a
> temporary measure, relying on those who hold that shmitta does not exist
> even d'rabbanan b'zman hazeh or violating the d'rabbanan of shmitta (you
> will agree with me that Rav Kook held that Shmitta was d'rabbanan).

I'm not sure that it is better. Remember, I don't intend to rely on the 
heter mechira.

> e) what precisely is the shas ha'dchak?  What I mean by that is not, as
> Rav Kook himself describes it shetalui b'zeh ch'v horban yishuv - but
> the underlying problem that makes this heter objectionable and only to
> be done in extremis.  It is quite clear that this heter is not an ideal,
> even to Rav Kook, that must surely be obvious - the question is, what is
> it that make the matter not ideal.  You seem  to be suggesting that it
> the problem of selling a piece of land to a goy.  My reading of it that
> it is not so much that, but the whole scenario of uprooting shmitta.
> After all you are eliminating the shabbas of the land (all by way of
> what is pretty much a trick) and all Jewish ownership in it - it is hard
> to see how anybody frum person could want to do this - except in
> extremis.  That, to me is the reluctance that is clearly flowing from
> his words.

I think it's both of those, plus a safek as to whether a goy has 
kinyan in Eretz Yisrael to be mafkia from shmitta. By the way, 
everything in Sefer HaShmitta (see below) indicates that the 
problem was Lo S'Choneim.

> [BTW as an aside - I have always heard the explanation that Rav Kook
> gives about the potential chorban of the yishuv were the heter not to
> occur - but historically was that really the case? After all, the frum
> community which was there from beforehand had previously survived
> numerous shmittas, via handouts from Europe and goyishe produce or
> otherwise, and the vast majority of the Zionist newcomers were not frum,
> and hence would not care less about shmitta or no shmitta.  

I think the concern for the survival of the Yishuv was real. Rav Kook 
didn't invent the heter. The heter goes back to 1888-89. Rabbi Wein 
writes in "Triumph of Survival" at 229-30:

"The impending struggle over the nature of Jewish colonization of 
Palestine was reflected in the halachic dispute over the observance 
of Shemittah... which fell in the year 1889. In 1882, the previous 
Shemittah year, there were very few Jewish farmers in Palestine, 
and those few farmers did indeed allow their field to lie fallow during 
the Sabbatical year. However, the rapid increase in new Jewish 
farming settlements in the mid-1880's, forced the Rabbis aligned 
with Chovevei Zion to face the problem of the forthcoming 
Shemittah, 1889. The settlers, their sponsor Baron de Rothschild, 
and most of the leadership of Chovevei Zion claimed that the entire 
project of new agricultural settlements for Jews in Palestine would 
collapse if the land of the existing settlements would not be tilled 
that year. 

"The threat of the closure of the existing settlements and of the 
withdrawal of Baron Rothschild's continued support forced a 
meeting of the rabbinical trustees of Chovevei Zion in Vilna in the 
fall of 1887. Two of those trustees, Rabbi Mordechai Eliasberg of 
Brisk and Shmuel Mohilever of Bialystok undertook to publish a 
halachically sound heter to allow the fields to be tilled in 1889. The 
third trustee, the renowned Netziv of Volozhin, opposed any such 
heter. The heter was nonetheless published over the signatures of 
Rabbi Yehoshua of Kutna, Rabbi Shmuel Mohilever, and Rabbi 
Shmuel Zanvil Klepfish of Warsaw. The heter was further 
strengthened by a long, legal halachic discourse supporting it, 
which was published in 1888 by Rabbi Yitzchak Elchanan Spector 
of Kovno. However, it was bitterly opposed by the Rabbis of 
Jerusalem, as well as by the Netziv, Rabbi David Friedman of 
Karlin, Rabbi Yosef Dov Soloveitchik of Brisk, and Rabbi Samson 
Raphael Hirsch."

So on the one hand we see that there never really was a full 
shmitta in Eretz Yisrael, from the time that there was an 
appreciable number of settlements, in which the heter was not a 
factor. And clearly, if Rothschild had withdrawn his financial 
support the Yishuv would have been in crisis. (Ever try to convince 
your investors that you should take a year off from promoting your 
company? :-) 

On the other hand we see that much of religious Jewry and its 
luminaries opposed the heter from day one. Rabbi Wein goes on to 
describe how the problems reflected by the controversy over the 
heter continue to this day, and in a footnote he describes a trend 
away from the heter that began with the Chazon Ish in the 30's and 
continued to the point that the Israeli government started to import 
grain for those who do not hold by the heter in the 1987 shmitta. 
As I noted yesterday, in 1994, all grain used in Israel came from 
Chutz La'Aretz.

See also Rav Tukichinsky's Sefer haShmitta Pages 59-62.

BTW there is nothing in either discussion that indicates that most 
of the farmers were not fruhm.

So how
> extensive really were the dati kibbutzim that would presumably be the
> ones to disappear?  

In 1888, I think there were none. In 1910, there were likely very few. 
I don't think the earliest kibbutzim were even founded before the 
early 1900's. In 1881-82 you were talking about Petach Tikva and 
Motza (no kibbutzim) according to Rav Tukichinksy (RYMT). In 
1888-89 he adds Rishon leTzion, Ekron, Nes Ziona, Rosh Pina, 
Gedera and Yesod HaMaala. None of those are kibbutzim.

Or was the concern really that the two economies
> were now so entwined that a frum Jew could not longer live in the land
> at all without encountering at some aspects of shvi'is - ie the
> situation would be such that even the old yishuv could not extracate
> itself? 

I'm not sure that was the concern.

Or could no longer buy produce from Arabs because of
> hostilities? Does anybody know?]

That's not really mentioned either. 

In reading throught RYMT's sefer very quickly, I note that there was 
apparently some difference of opinion between R. Yitzchak 
Elchonon and the Maharil Diskin as to how the heter should be 
accomplished (the Maharil Diskin felt that trees and land sufficient 
for yenika should be sold al tnai of cutting them, which apparently 
solves the lo s'choneim problem, and then if they don't cut them 
the land is sold temporarily for two years). Rav Kook followed R. 
Yitzchak Elchanan (which is what is still done today AFAIK) and 
not the Maharil Diskin. R. Yitzchak Elchonon apparently rejected 
the Maharil Diskin's shita.

There is also a discussion on the bottom of Page 62 in RYMT on 
how Rav Kook continued to hold throughout his lifetime that the 
heter was a temporary measure and that he encouraged farmers 
not to rely upon it if they didn't need to. See also Mishpat Cohen 
63.

-- Carl


Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

Carl and Adina Sherer
mailto:sherer@actcom.co.il

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


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