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Volume 08 : Number 104

Thursday, January 31 2002

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Subjects Discussed In This Issue:
Date: Wed, 30 Jan 2002 18:48:15 -0500
From: "Michael Frankel" <michaeljfrankel@hotmail.com>
Re: Din Torah

RCS<<If the insurance agent got the check, then the Mazik would be patur,
and I would be able to recover from the insurance agent, but the insurance
agent is..>>

i aplologize if this was answered and i missed it, however, since i
was the one who suggested the relevance of the sugyoh in gitin 63b,
i still do not understand why you feel it is poshut that the mazziq is
potur if your insurance agentess did get the check. Despite her qabboloh
status -- which i understand you are now explaining she did have -- the
conclusory remark there is "chayyov b'achroyoso" -- applicable even when
"loa yachzor", i.e. we grant the sholiach a qabboloh status, but yet
the sender is still responsible in dinei momonos until it reached the
intended recipient. Why is that any different than your case.?

Mechy Frankel
michaeljfrankel@hotmail.com H: (301) 593-3949
michael.frankel@osd.mil     W: (703) 588-7424

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Date: Wed, 30 Jan 2002 22:53:00 -- 0500
From: kennethgmiller@juno.com
re: Din Torah -- Missing Facts

R' Carl Sherer wrote <<< The way I see the situation, I appointed
a Shaliach l'Kabala (the insurance agent) and the Mazik appointed a
Shaliach l'Holacha (the post office). >>>

This is a great example of when I recently bemoaned our lack of knowledge
of even basic concepts in Choshen Mishpat.

Specifically, if I ask someone, "do this for me", does he REALLY become
a full-fledged halachic Shaliach thereby? I honestly don't know. I know
that when I ask the rav to sell my chometz, doing a kinyan sudar is an
important part of my making him my shaliach. If we skip that step --
or if R' Sherer skipped that step when appointing the insurance agent
to be his shaliach -- is the sh'lichus valid halachically? I don't know.

Akiva Miller

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Date: Thu, 31 Jan 2002 09:20:03 +0200
From: S Goldstein <goldstin@netvision.net.il>
din Torah

>The way I see the situation, I appointed a Shaliach l'Kabala (the
>insurance agent) and the Mazik appointed a Shaliach l'Holacha (the post
>office). If the check was sent unregistered (as appears likely), that is
>a pgam in the appointment of the Shaliach l'Holacha, and... the Mazik...has
>to pay me again.

This might not be true if your agent asked that the check be mailed.
See Kiddushin 8b al gabei sela; especially daas haRaavad in Rosh.

Shlomo Goldstein

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Date: Thu, 31 Jan 2002 11:52:04 +1100
From: "SBA" <sba@iprimus.com.au>
Re: Melamed Leho'il (2)

From: "Gil Student" <gil_student@hotmail.com>
> SBA wrote:
>> [BTW someone has brought to my attention, that RDZ Hoffman z'l, rav of
>> the Adass Yisroel Kehilla in Berlin pre-war, writes in Melamed
>> Leho'il - YD s. 36 - that only 'kalei hadaas' were meikil in CA in
>> Germany..]

> There are two ways to know that this is false.  The first is knowing that
> this remark would be entirely uncharacteristic of RDZ Hoffman.  The second
> is looking up the teshuvah and seeing that he said no such thing.

Wrong MM but not  false.
He actually said it.
Not YD s.36 but 33.
Sorry about that.

Vezeh leshono:
"...v'eyn mattir cholov shel nochri bim'dinoseinu rak kalei hadaas..."


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Date: Thu, 31 Jan 2002 09:31:56 -0500
From: "Gil Student" <gil_student@hotmail.com>
Re: Melamed Leho'il (2)

RSBA wrote:
>Not YD s.36 but 33.
>Vezeh leshono:
>"...v'eyn mattir cholov shel nochri bim'dinoseinu rak kalei hadaas..."

Thank you for that. I realize now that I had been medayek incorrectly
in your earlier post. I had thought that you were quoting RDZ Hoffman
as saying that only "kalei hada'as" are lenient and drink Chalav Akum.
That is not the way a gadol beTorah speaks about balebatim. What you
meant, or at least what he meant, was that only morei hora'ah who are
kalei hada'as pasken leniently.

Gil Student

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Date: Thu, 31 Jan 2002 10:53:34 -0500
From: "Gil Student" <gil_student@hotmail.com>
Re: Chalav hacompanies

RSBA wrote:
>Once when discussing Maacholos Assuros, he [R. Shraga Feivel Mendelovitz]
>took the time to give a comprehensive explanation on "chomer ho'issur' of 
>Cholov Akum..."shehoyo porutz beyoser bayomim hoheim beAmerica..."

First of all, I doubt that any biography written today about a gadol baTorah 
would say anything other than that he was very makpid in Chalav Yisrael.  So 
we can only get a sample of the machmirim and not the meikilim.  Regardless, 
RSFM was known as one of the yechidei segulah who was a machmir ba'al mussar 
and a poresh.  He was not a rav or a posek.

>Further on he writes that the words of RSFM made a deep impression on the 
>bochurim - especially when he added that he had seen a copy of the Tanya 
>[chapter 18] where it states that "afilu kal shebekalim uposhei yisroel 
>mosrim nafshom al kedushas Hashem" - where the Tzemach Tzedek z'l had noted 
>in his handwriting: that this refers to "shaar reshoim, chutz me'ochel 
>chometz bePesach, oy choto beNidah, v'hashoseh cholov shecholvo Akum...!"

Which is probably why Lubavitchers are so makpid on Chalav Yisrael.

>In the notes at the end of the chapter the author refers to the Meshech 
>Chochmo [P. Bo, dh Hachodesh Hazeh] who writes that he has bekabolo from 
>the Gr'o z'l that even though Chazal gave taamim [for their gzeiros] , they 
>still kept hidden thousands of other reasons ['temunim beseser levovom'].

The whole machlokes on chalav akum is whether it was a gezeirah.  If it 
wasn't, as many poskim hold, then the Gra's words are irrelevant to our 

I would also point out that the Gra was makpid on many gezeiros for which 
the velt is not machmir - netilas yadayim for peiros, mayim acharonim,...  
Implied is that those who are not machmir either disagree with the Gra about 
gezeiros or believe that these cases are not gezeiros.

>WADR how many of the early immigrants remained Shomrei Shabbos? How can you 
>bring a rayoh from a situation where even those that did keep Shabbos and 
>the basic mitzvos did so with huge mesiras nefesh. I understand that even 
>the kosher meat available in many places was quite bedievedig.

There were plenty of rabbonim and talmidei chachamim here as well.  There 
were also plenty of fine, ehrliche yidden.  No, they were not by any means 
the rov.  But neither were the talmidei chachamim and ehrliche yidden in 
pre-war Europe either.

Gil Student

Chat with friends online, try MSN Messenger: http://messenger.msn.com

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Date: Wed, 30 Jan 2002 21:53:04 -- 0500
From: Gershon Dubin <gershon.dubin@juno.com>
Piece by Rav Yaakov Kamenetsky

From: Micha Berger <micha@aishdas.org>
<<Chanukah was pretty much timed for the date told to Zecharia for
the final chanukas habayis (bb"a!). I seem to recall the argument (was
it here?>>

Rabbi Leibtag's Chanuka shiur deals with this.


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Date: Wed, 30 Jan 2002 21:55:53 -- 0500
From: Gershon Dubin <gershon.dubin@juno.com>
"New Route for Kohanim? Heard Nothing About It"

From: Micha Berger <micha@aishdas.org> << Perhaps the aveil could find
no other way of preserving the inyan of not moving a sefer Torah to a
location for fewer than three uses?>>

OK, here's where you came in: the avel was Rav Dovid Morgenstern, Rav
Elyashiv's talmid. My conjecture was that if in fact he was makpid on
this inyan, which many/most poskim hold is a mistake, it would be proof
otherwise. This is the "Rashi" on my question.

Gershon gershon.dubin@juno.com

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Date: Wed, 30 Jan 2002 21:44:59 -- 0500
From: kennethgmiller@juno.com
Re: Evidence

R' David Finch writes <<<... strictly speaking there is no Jewish law of
evidence.... Documents were used to attest to certain transactions, but
were not given the sort of independent weight implied by the modern notion
of admissibility. (Similarly, Jewish law did not embrace the Common Law
notion that certain instruments must be treated as independent sources
of evidence and "speak for themselves." Instruments speak through the
testimony of their creators.) >>>

I'm quite the novice at this, but I do think that signed documents do
speak for themselves in some circumstances. If a document is found, in
which Ploni admits to a certain debt, and he signed that document, and
witnesses testify that this really is Ploni's signature, I recall that
the document is given the status of "hodaas baal din k'meah edim dami".
In other words, a signed document is accepted as if the signer had given
that testimony verbally.

There's another example of "evidence" in halacha, in the parsha of Motzi
Shem Ra (Devarim 22:13-21), when the chasan accuses his bride of not
being a besula. Depending of how literally you want to understand it,
the case before the Beis Din is not merely "he said, she said", but
there can be some actual physical evidence which the court must consider.

The evidence in that case is very similar to the check in our case:
Reuven is NOT claiming that he put money in Shimon's hand. Rather,
Reuven is claiming that he mailed a certain document which thereby
satisfied his debt. The details of this document are very important,
because the court just might decide to believe that Reuven really did
mail that document, yet still rule that it did not satisfy his debt.

Akiva Miller

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Date: Thu, 31 Jan 2002 00:45:29 EST
From: DFinchPC@aol.com
Re: Evidence

In a message dated 1/30/2002 10:01:43pm CST, kennethgmiller@juno.com
> I'm quite the novice at this, but I do think that signed documents
> do speak for themselves in some circumstances. If a document is found...
> the document is given the status of "hodaas baal din k'meah edim dami".
> In other words, a signed document is accepted as if the signer had given
> that testimony verbally.

First, R'Akiva's Ploni example. It seems to me that the contested
document does not "speak for itself" because its meaning must first be
established by oral testimony, i.e., a witnesses's statement that the
document contains the terms of the debt, was duly signed and executed,
etc. If Ploni admits that the document was signed by him, but disputes the
meaning or applicability of the document, then it is my impression that
the Beis Din can rely on what lawyers call parol evidence (circumstantial
testimony, other documents, etc.) in deciding whether to accept Ploni's
argument. A document that "speaks for itself" under the Common Law,
on the other hand, cannot be construed beyond its plain meaning through
the testimony of witnesses. (I might be wrong on this point, of course,
and eagerly await instruction from a Talmudic contracts expert.)

Second, as R'Akiva notes, Devarim 22:13-21 addresses circumstances in
which a chasan accuses his bride of not being a besula. In settling the
dispute, the passage orders the chasan's family to "spead out the cloth
[containing evidence of sexual intercourse] before the elders of the
city." R'Akiva suggests that this shows resort to physical evidence that
might overcome the he said-she said debate. Rashi, however, reads the
passage differently. Rashi said that "spread out the cloth" is a figure
of speech meaning that the facts are plain to see as a cloth. Rashi
later said that if the verse were meant to be taken literally, it
would have said "v'haveeu hasheemla" and ordered the aggrieved family
to bring the cloth. The injunction merely to "spread" the cloth meant,
to Rashi, that the aggrieved family should "explain" the plain meaning
of the cloth. In other words, the passage calls for testimony in which
the cloth has only a demonstrative role.

As for Reuven mailing a check for covering a debt, there is in
Anglo-American law a "mailbox rule" that covers much of dispute. I'd
expound on it, except that I skipped the contracts class in which it
was taught when I was in law school, and have no idea of what it teaches.

David Finch

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Date: Thu, 31 Jan 2002 13:50:14 GMT
From: kennethgmiller@juno.com
Re: Evidence

I wrote <<< If a document is found, in which Ploni admits to a certain
debt, and he signed that document, and witnesses testify that this really
is Ploni's signature, I recall that the document is given the status of
"hodaas baal din k'meah edim dami". >>>

R' David Finch responded <<<... If Ploni admits that the document was
signed by him, but disputes the meaning or applicability of the document,
then... >>>

Sorry. My fault. In my quote above, after the word "signature", please
insert, "and for some reason Ploni is not available to testify about
it". In other words, (according to my recollection) in Ploni's absence,
his signed document is accepted as testimony. This is what I meant when
I wrote that a document can constitute "evidence" in Halacha.

Of course, I could be totally wrong on this. I don't know where it is
that I remember this from, or even if we pasken that way.

Akiva Miller

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Date: Thu, 31 Jan 2002 16:29:27 +0000
From: Micha Berger <micha@aishdas.org>
Re: Evidence

On Wed, Jan 30, 2002 at 09:44:59PM +0000, kennethgmiller@juno.com wrote:
: There's another example of "evidence" in halacha, in the parsha of Motzi
: Shem Ra (Devarim 22:13-21), when the chasan accuses his bride of not
: being a besula....

Then there is also the issue of bringing shenei sa'aros, which could prove
someone is chayav vs being a qoton, or the renoun besulim test.

And what about "hamotzi meichaveiro alav *hara'ayah*"?

Or the lack of formal eidus and derishah vechakirah if the dayanim know
his guilt first-hand.

I wonder if shetaros are evidence or eidus or their own category.


Micha Berger                     Time flies...
micha@aishdas.org                        ... but you're the pilot.
http://www.aishdas.org                           - R' Zelig Pliskin
Fax: (413) 403-9905          

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Date: Wed, 30 Jan 2002 22:58:43 -- 0500
From: kennethgmiller@juno.com
re: Sources for Matan Torah

R' Howard Schild werote <<< "Everybody" says that all Jewish Souls
(Jews-to-be) were at Sinai with those then alive... but what is... the
source for Souls of future Mshumdim (Heretics that convert out) not
being there? >>>

Regarding the meshumadim, I never heard such a thing. Once a Jew, always
a Jew.

Once a Jewess, always a Jewess, and her kids too; and her daughters'
kids too. And so on, and so forth.

Maybe there ISN'T any source for what you heard?

Akiva Miller

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Date: Thu, 31 Jan 2002 23:31:32 +1100
From: "SBA" <sba@iprimus.com.au>
Making a brocho for pleasure

Interesting piece in the Taamei Haminhogim b'shem the Bnei Yissoschor
z'l; that for every hano'oh which there is no brocho eg enjoying music,
marital relations etc, one should first make a brocho 'Shehakol' on a food
or drink -- as this brocho 'patters' all hano'os... (Maggid Taalumah p 93)


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Date: Thu, 31 Jan 2002 23:40:01 +1100
From: "SBA" <sba@iprimus.com.au>
"minhag America",

From: Micha Berger <micha@aishdas.org>
>>>> For that matter, "minhag America", where the norm was to use ChC,
was backed by gedolim like R' Hutner (as RSK noted), RYBS etc...<<<

Is there anything in writing from R' Hutner?
I ask because from the writings of RYEH and RMF -- one sees that 1) ChC
is a 'kula', 2) 'chashash issur', 3) only 'bshaas hadchak' -- not really
strong powerful rulings. LAD. Maybe RH was more forceful in his psak?

I have been told about RYBS, although again I have seen nothing writing.

And BTW who are the 'etc.'?

And if I may say this without treading on any toes, can these gedolim
overrule the Gr'o, CS, OH, Boruch Taam, Divrei Chaim etc who clearly
believe in CA as gezeiras chachomim -- which has no hetter?

RGS presented a list of gedolim who are mattirim. Am I correct in saying
that they are all Sfardim? And if so, do Sfardim generally rely on ChC?

Does anyone know if ROY has paskened in this matter?

[Email #2. -- mi]

From: Micha Berger <micha@aishdas.org>
>>>> The fact is that RMF chose a certain set of teshuvos to be in his
Igros. Teshuvos that predate the last (relevent) volume are therefore
suspect as probably being more limited in scope and implication, and
those that postdate still have their generality as an open question.<<<

I have previously mentioned that there are 5 short answers to separate
questions in this Tshuva by RMF.

I didn't go through the sefer, so I don't know for sure, but maybe RMF
was leaving these smaller tshuvos with less lomdus etc for later...?


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Date: Thu, 31 Jan 2002 23:57:46 +1100
From: "SBA" <sba@iprimus.com.au>
A few vertlech on current parshios

Here are a few vertlech that I have come upon, a bit late but still

The Munkatcher Rav, the ME z'l brings in his "Chaim Vesholom al hatorah'
- a remez from the Chozeh miLublin z'l on all the Mo'adei Hashono -
in the current parshiyos.

Bo - Pesach
Beshalach - Shvi'i/Achron shel Pesach (yetsias Mitzrayim)
Yisro - Shovuos (kabolas Hatorah)
Mishpotim - Rosh Hashono & Yom Kippur (Yemei Mishpot)
Terumah - Sukkos (Ohel hamishkon - remez lediras aray)
Tetzaveh - Chanuka (shemesh zayis zoch)
Ki Sisoh - Purim ("..Hikdamti shikleichem l'shkolov shel Homon..")

 From the Apta Rov z'l: (baal Oheiv Yisreol)

Kadesh Li - If you want to be holy for me (=Hashem)
Kol Bechor - You should know that everybody [kol] is bigger than you
Peter Kol - First of all
Rechem Bivnei Yisroel - You should be merachem on every Jew
B'odom uBavheimo - Whether you consider him to be an 'odom' or a 'beheimeh'
Li Hu - That is My (Hashem's) concern - and not yours...

And a vort I remember hearing from a Maggid shiur decades ago:

"Vatikach Miriam Haneviyo...es hatof beyodo, vatetseno kol hanoshim
achreho...Vataan "LOHEM" Miriam - shiru leHashem ...'

Obvious question - M was talking to the women so it should say Vataan
"Lohen" - [l. nekevah]?

His answer was, that following the ecitement of krias Yam Suf and the
singing of the shirah there was a huge hullaballo going on with men,
women and children all joining in the festivities.

M was not happy at this 'taaruvas anoshim venoshim' - so she led all
the women away [vatetseno kol hanoshim achreho],
after which, M turned around to the men and said the them - "LOHEM" -
>NOW< you may go ahead and "shiru leHashem"...

Another pshat.
The reason why M and the women used musical instruments [supim umecholos]
was, to drown out the 'kol b'isha' of the women singing...


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Date: Thu, 31 Jan 2002 00:21:18 -0500 (EST)
From: "Jonathan Baker" <jjbaker@panix.com>
Isha Psulah Ladun

Josh Backon and I, on another forum (SCJM), have been having an argument,
and we thought we'd pass it along to the chevre and see what comes up.

Pardon the length: Josh wanted to be sure that his sources were cited,
as well as my counterarguments.


It all started with some guy grousing about Haviva Ner-David's quest to
become a rabbi. S-- challenged him to prove that women can't be rabbis.
Josh chimed in with

>See: Yoreh Deah 242:14 in Shach, Birkei Yosef and Pitchei Tshuva for
>definition of semicha today. Also: Bet Yosef TUR Choshen Mishpat 25.

>As for women getting semicha: see Choshen Mishpat 7:7. They are ineligible
>(isha pesula la'dun) [see also Rambam Hilchot Melachim in the first perek]
>See also Rishonim on the gemara in Yevamot 45b.

I countered with Pitchei Teshuva CM 7 s"k 5, which says micol maqom
isha chachamah yecholah lehorot horaah (which is the definition of
modern smicha, according to the aforementioned SA YD 242:14 in Rema),
based on the Tosfos on Devorah.

Josh responded:
>The Tosfot there is "al pi ha'dibbur haya"; thus you can NOT use this
>incident to understand that women can be rabbis.

So we started trying to figure out exactly what Tosfos says. There are
about half a dozen relevant Tosfos on Devorah and women as dayanot.

S-- brought the Minchat Chinuch end of positive mitzva 83, which says
that women can be judges in a zabla if the litigants accept them, and
registered his annoyance with Josh for listing a bunch of sources that
don't seem particularly relevant to the issue at hand.

Josh then tried to shlug up the P.T., claiming that it was addressed
to a particular woman, to judge on a one-shot basis. I said that micol
maqom looked like a general heter, especially as a comment on a code.

Josh again:
>To follow up my prior posting: see Shulchan Aruch YOREH DEAH 127:3
>re: "ne'emanut" (reliability?) for "issur v'heter" (e.g. kashrut).
>Look in the Rema, Shach {EIN ha'nashim ne'emanot b'issur d'oraita].
>See also: Kreiti s"k 19; Yad Efraim YD 94:2; Nachalat Tzvi 42:3.
>Also: Tosfot Pesachim 4b d"h heimnuhu; ROSH Pesachim Perek Alef Siman 3;
>(and RAN there).

>Not only can they NOT get Yoreh Yoreh smicha; they don't even have
> ne'emanut on issurei d'oraita!

To which I responded, without looking up the sources, that that's
ridiculous, or else none of us could eat anything our wives/mothers
cooked, or could have relations with our wives based on their eidut about
having gone to the mikva. Basically, he had proven the sheretz tahor --
nice theory, but runs up against the wall of halachic reality.

By this time, we're getting pretty frustrated at the other's opacity.

Micha, in the meantime, tried a linguistic argument about Devorah from
shofeit vs. dayan, saying that shofeit meant war-leader while dayan meant
judge. I countered that this was post hoc ergo propter hoc, because dayan
qua judge doesn't show up until I Sam 24:16, so you can't argue that
because dayan existed later, it also existed earlier. We stalemated on
this one, I think, esp. since the Targum on Devorah translates shofeit as
dayna for her, while earlier in the book it translates shofeit as nagid.

[Micha's 2 cents: I said that shofeit could be used here strictly in
the sense of war-leader. Not that it's the primary meaning, but in a
discussion of the era of the Shofetim an obvious secondary meaning could
be intended. As she (among other shofetim) was not eim beis din (see
the Rambam's list), it would seem that the word "shofeit" in this
discussion should not be given the naive usage.

[I also suggested a different idea: perhaps a woman can't be a rav, but
could be a soferes in the sense of "divrei soferim" -- a navi + rav. In
fact, this could be the intent of the rishonim rather than her rule
being a nevi'ah's hora'as sha'ah. -mi]

Josh then tried to argue from Hil. Melachim 1:5 melech velo malka that
the ban on women having serarah barred them from being rabbis/ judges.
I countered that not everyone reads melech velo malka broadly; e.g. RJD
Bleich's article on Women on Synagogue Boards -- he reads it broadly,
but cites others who don't, and there are plenty of shuls with women on
the board.

Back on the issue of Devorah as judge, Josh:
>Look in the gemara in Megillah 14a, in Rashi there and in the GRA on
>Seder Olam.... [later] that gemara lists the shoftim.

In that Gemara -- nothing useful, a list of neviot, not dayanim/shoftim.
Nobody argues that Devorah wasn't a neviah.


>See also the Tosfot in Yevamot 45b.

This is where it starts to get interesting.

Here are a list of Tosfos: B"K 15a s.v. Asher; Yeb 45b s.v. Mi; Nidah
50a s.v. Col; Gittin 88b s.v. Velo; Shevuot 29b s.v. Shevuot;

One after another, Josh would raise "See the gemara in X place", and
each time I would look and tell him either "that's talking about eidut,
not dayanut" or he would say "see where it says isha psula ladun",
and I would say, "that's Tosfos saying it, not the gemara."

Tosfos based his opinion on a gemara in the Yerushalmi Yoma 32a, which
does indeed say that a woman cannot judge, based on a gezera shava between
"shnei anashim" and another "shnei." One might think that's dispositive.
But, if one reads on in the Yerushalmi, the gemara shlugs up the gezera
shava, hooking the other side to another halacha elsewhere, and leaving
this verse to prove (as in Shevuot 30a) that the witnesses and/or the
litigants (each pair) must both be standing up in court. So Tosfos bases
his ruling on a REJECTED DRASHA. Not a strong reed on which to balance
a major halacha.

The final straw that convinced Josh that there's something strange going
on here, was the Tosfos in Shevuot 29b

Here's my post:

Me Josh
:>Let's start from scratch: check the Tosfot in Shevuot 29b d"h "shevuot

:Yes, let's. That tosfos brings the alleged inference from the verse
:of "shnei anashim" which comes from the next page (30a), but that's
:talking about eidut, and the oath of eidut -- since women can't be
:witnesses, they don't take the oath of witnesses.

:>ha'edut". Only one who is a kosher witness can be a judge; since a woman
:>isn't a kosher witness, she can't be a judge. The Tosfot there brings
:>down all the relevant sources.

:So he then tries to infer it from eidut, and then brings that Yerushalmi
:again as support for his inference GLOSSING OVER THE FACT THAT THE GEMARA

:Then he brings Kiddushin 35a, which seems to disprove him, by saying
:"all are kosher to judge", but he comes back with Gittin 88b, which
:disqualifies batei din of nonjews and/or laymen, and then waves his
:hands a bit as if to say that this should also exclude women, but has
:to admit that women and men can both be litigants.

:Another weak Tosfos, that depends on handwaving.

:The closest he came was the citation of Niddah 49b/50a, which doesn't make
:for a valid inference (All witnesses can judge; No woman can witness;
:No woman can judge), except that he doesn't make the inference explicitly.
:Rather, he makes the inference, and then bases it on the weak Yerushalmi
:in Yoma, thereby shooting himself in the foot.

:In Aristotelian terms:

:All W are J,   No I is W   -->   No I is J;
:where I: isha -- woman W: kosher Witness J: kosher Judge

:which doesn't rule out the possibility of the statement "Some I are J,
:even if they aren't W" That would be, in First Figure, an A E E form,
:and there is no valid mood that fits those requirements. (P.V. Spade,
:Thoughts Words and Things, www.pvspade.com)

:So the inference doesn't work, and the support from Yoma is weak at
:best. And then he bases all the other Tosfos (B"K, Niddah, etc.)
:on this chain of "logic."

:>In Perek haCholetz 45b "isha eina re'uyah ladun".

:That's in TOSFOS for the third or fourth time, not in the GEMARA.

:>There seems to be a Yerushalmi in the 3rd Perek in Sanhedrin
:>and one in Yoma.

:I was referring to the one in Yoma 32a, which, while it does say what
:Tosfos brings, it also REJECTS that gezera shava. So how can Tosfos
:use it as a binding Amoraic precedent?

:>The Tosfot in Shevuot 20b d"h "shevuat ha'edut" quotes a gemara in
:>Kiddushin 35a (which I haven't checked up).

:Which again I don't see as relevant to this issue. That page talks
:about mitzvot asei shehazman grama, and whether or not women are
:equally bound with men as to civil law -- which they are.


My later observation on the whole thread:

:I must say I feel odd to be arguing this side of the question of women
:as judges. I've always taken for granted the Rav's statement that
:women shouldn't feel bad that they can't be witnesses or judges, since
:neither can the kohen gadol or the king. But now that I'm looking into
:it, it's not comparable at all, since the kohen gadol and the king are
:exempted from witnessing/judging by the Mishna, while women are exempted
:from witnessing by the Gemara (and possibly the Mishna), and exempted
:from judging only by Tosfos, and only by very weak logic in Tosfos.

:Which leads me to wonder -- what in Tosfos' milieu caused him to rule
:against counting women in communal roles? He's also the first to rule
:against counting women in a minyan for prayer (not counting in a minyan
:for benching comes from the mishna/gemara).

After this, Josh acknowledged my point -- that apparently Tosfos is
the first source to rule that women cannot be judges, and does so in
a very weak way. He suggested that we pass the issue along to Avodah:
is there an earlier source than Tosfos that passuls women from dayanut
(NOT eidut; that they are pasul l'eidut is well-established)? Is there a
stronger proof than rejected gemaras, invalid inferences, and handwaving?

Josh's commission:
>Ask if there is a DIRECT source (isha pesula ladun) BEFORE Tosfot. And ask
>if the Mei Menuchot or Shita Mikubetzet (or Shaagat Aryeh or Pnei
>Yehoshua) shver these Tosfot!!

He also notes that AhS derives the psul ladun from serarah, rather than
from eidut, which is at least a plausible derivation, if not really sup-
ported directly from any of the sources. I note that Rambam in Hil.
 Sanhedrin 2:1 where he lays out the requirements for judges does not
explicitly bar women from judging. He does say at one point "anashim
chachamim venevonim", but even that is marked as his chiddush by the
Ridvaz, who quotes the gemara as "baalei chochma..." -- i.e., genderless.

So we throw it to you: is isha psula ladun Tosfos' chidush, or is there
a real source/drasha/mesorah from which he gets it?

-- jon baker jjbaker@panix.com <http://www.panix.com/~jjbaker> --

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Date: Thu, 31 Jan 2002 17:15:00 +0000
From: Micha Berger <micha@aishdas.org>
Re: Fwd: SICHOT62 -17: Parashat Yitro

RYA left me in the dust.

How does he get from:
: The fifth of the Ten Commandments is honoring parents (20:12).
:                  ..., the Maharal explains that the rabbis brought an
: example from a gentile to emphasize the fact that honoring parents is
: something that makes sense logically....    The Maharal then explains
: that as a result of his fulfillment of the rational mitzva of honoring
: parents, Dama's reward came through the classic incomprehensible mitzva,
: para aduma...

... i.e. mishpat vs choq, to:
: Moshe wanted to keep these roles united, to emphasize the idea that
: interpersonal justice and moral action come from the same source as divine
: command and religious observance. He wanted to make it perfectly clear
: that to be a complete Jew, one is required not only to follow ritual law,
: but also to act properly toward one's fellow man.

... i.e. bein adam laMaqom vs bein adam lachaveiro?


Micha Berger                     Time flies...
micha@aishdas.org                        ... but you're the pilot.
http://www.aishdas.org                           - R' Zelig Pliskin
Fax: (413) 403-9905          

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