Avodah Mailing List

Volume 16 : Number 089

Monday, January 16 2006

• citations & g'neivas da'as
• Timtum Halev - Shabbat?
• RE: citations & g'neivas da'as
• RE: Tzadik vtov lo
• RE: Ramban's view of Rambam is wrong!
• Tefilas Haderech nowadays
• RE: citations & g'neivas da'as
• RE: citations & g'neivas da'as

RSC writes:
> The issur of gineyvas daas is brought down in the Gemara in
> Chulin 94. The Gemara says that it is assur to send a thigh 
> of an animal to a nachri (as a present) that is cut open and 
> looks like the gid hanasheh was removed when in fact it was 
> not removed. The reason is because the nachri will assume 
> that you are honouring him by sending him only food fit to be 
> eaten by Jews when in fact you are being gonev his daas.

> Now, is their anything intrinsically wrong with any of the
> physical actions this man has done? Is it assur to send 
> presents to nachrim? Is it assur for a Jew to have hana'ah 
> from a gid hanasheh? (there's actually a machlokes but the 
> Tana in our mishna holds it is mutar) Is it assur for a goy 
> to eat the gid hanasheh? The answer is no to all of the 
> above. 

I agree with all of this.

>What makes this gift problematic is merely the
> intention of the sender, nothing more.

I confess I would rather have thought that what made the gift problematic
was the understanding (even if mis-understanding) of the recipient.

Where do you see in this gemora that the person sending the gift
necessarily ever intended for the nochri to jump to the conclusion that he
was being honoured? Rather, is not what the gemora saying here is that
even though (without the gemora's help) it might never have occurred to
you that a nochri might jump to this conclusion, you are over on the
issur of geneivas daas if in fact you did send him such an a thigh?
Otherwise surely the gemora would have said, it is assur to send a
nochri a thigh that is cut open if by doing so one intended for him to
believe that he was being honoured (in a similar way as the mishna in
Baba Metzia says that one is not permitted to ask for the price of an
item if he does not intend to buy, where the key factor is located in
the intention of the asker).

> Gineyvas daas is not 
> like gineyvas mamon.

Why not? The cases seem directly analogous - ie if you swip somebody's
property accidently it is still stolen (albeit b'shogeg). So if you
mislead somebody into believing you are honouring him when in fact
you aren't, why is that daas not equally stolen, despite you having no
intention of doing so?

> The issur of gineyvas daas is an
> extension of the requirement to be echad bipeh v'echad 
> bi'leiv (see Rambam Hilchos Deos 2:7). 

I am not quite sure how you see this from Deos 2:6 either. That halacha
has a list of related topics seperated by vavs. Echad bpeh v'cechad
bi'lev is the second on the list. The issur of genevas daas is third.
There are several others that come afterwards. If there are any
sub-categories should they not both be a subcategory of the first?

[Email #2. -mi]

Correction: The boy referred to in the Chatam Sofer's teshuva (Orech
Chaim 83) was seven years old at the time of the question, not nine,
as I said he was in the post below.

Regards
Chana

The sh"ut Divrei Ytziv (C"M 46) brings a proof from the trumat hadeshen
on yevamot 113b which compares a possible shabbos issue to katan
ochel nvailot implication that Issur Shabbos is also mtamtem halev!
(thanks to my BI-CD, an ever faithful chavrusa whose main drawback is
it doesn't tell me what a fool I am)

KT
Joel Rich

On January 14, 2006, Chana Luntz wrote:
>>What makes this gift problematic is merely the
>> intention of the sender, nothing more.

> I confess I would rather have thought that what made the gift problematic
> was the understanding (even if mis-understanding) of the recipient.

True. But only if the sender meant to mislead the receiver. If the sender
did not mean to mislead the receiver, how can he possibly be responsible
for the receiver's thoughts if every physical action he did was entirely
permissible? For example, let's say this man had two thighs, one with
a gid hanasheh, one without. He put both in a box. He then informed his
wife that the one without the gid hanasheh should be sent to the their
goyishe acquaintance as a gift. When the messenger arrived to pick up
the gift, he grabs the wrong box. Do you imagine that now this man,
or his wife, are oiver gineyvas daas? It is highly un-mistaver.

> Where do you see in this gemora that the person sending the gift
> necessarily ever intended for the nochri to jump to the conclusion that he
> was being honoured? Rather, is not what the gemora saying here is that
> even though (without the gemora's help) it might never have occurred to
> you that a nochri might jump to this conclusion, you are over on the
> issur of geneivas daas if in fact you did send him such an a thigh?
> Otherwise surely the gemora would have said, it is assur to send a
> nochri a thigh that is cut open if by doing so one intended for him to
> believe that he was being honoured. 

I disagree. The Gemara "nems ohn for a pashtus" that a person is aware
of the nuances of gift-giving and thus understands that the nochri will
possess a higher measure of hakaras hatov due to the gid-less thigh. GD
doesn't just apply to thighs. The din applies primarily to misleading
people with your words or actions. That's why the Rambam puts it in
hilchos Deos, which are halachos that apply to one's character, not in
hilchos gineyva.

>> Gineyvas daas is not like gineyvas mamon.

> Why not? The cases seem directly analogous - ie if you swip somebody's
> property accidently it is still stolen (albeit b'shogeg).

But they're not analogous. An analogous case would be someone who
walks into your rishus and drops a chayfetz there. Did you steal it? Of
course not. Although now you happen to have someone else's cheifetz
in your house. So too, by gineyvas daas, if all of the actions you
performed were entirely permissible, and the nignav happens to impute
false objectives to your actions then it is like the nignav dropped his
daas off in your rishus. You didn't take it. The reason by the thigh that
it is assur automatically is simply because every gift giver knows the
ramifications of his gift-giving so it is a pesik reisha that he will
be gonev the nachri's daas.

If anything, I could hear the following ta'anah. Just as in a case where
someone drops a cheifitz in your rishus, although you didn't steal it
you still have a chiyuv to return it, so too in my case above, if the
messenger picks up the wrong box and you subsequently become aware of it,
you might have an obligation to "return" the nachri's daas to him...maybe.

>> The issur of gineyvas daas is an
>> extension of the requirement to be echad bipeh v'echad
>> bi'leiv (see Rambam Hilchos Deos 2:7).

> I am not quite sure how you see this from Deos 2:6 either. That halacha
> has a list of related topics seperated by vavs. Echad bpeh v'cechad
> bi'lev is the second on the list. The issur of genevas daas is third.
> There are several others that come afterwards. 

No there aren't. They are various manifestations of gineyvas dass and
two-facedness. Take a look at the last line of that halachah...v'afilu
milah achas shel pituy (first case in the Rambam) u'ginaivas daas (third
case in the Rambam) assur, ela sfas emes v'ruach nachon vlev tahor"
etc. in other words, all of the examples brought in this halachah are
a violation of being dishonest. (See kesef mishna who also lumps all
these halachos together.) You simply cannot be dishonest, a quality of
the mind, without intending to do so.

> If there are any
> sub-categories should they not both be a subcategory of the first?

Even if I conceded that, it's six in one hand etc. The first category
is Pituy (obsequiousness) and chalukos (two-facedness) which amounts to
the same thing as gineyvas daas.

Simcha Coffer

On January 12, 2006, Micha Berger wrote:
> On Tue, Jan 10, 2006 at 05:36:12PM -0500, S & R Coffer wrote:
>: But according to Rebbi, you need not experience YK correctly. Even if you
>: are sleeping, for instance, YK is michaper. How does that fit in to your
>: paradigm?

> It would seem that the whole point of the machloqes. 
> (IMHO, as an experience which reinforces the teshuvah...)

But I'll bring you several ra'ayos that you are incorrect. First of all,
the Rambam paskens (halacha beis), even according to us who hold like the
chachamim (halacha gimmel), that the sa'ir is michaper without teshuva on
asey's and lo saaseys without kares. So you see that there is a certain
power of kapara in the rituals of YK alone even without teshuva and even
according to the chahcamim.

Another ra'aya is that the Rambam states, even according to the
chahchamim, that *eetzumo shel yom* is michaper to shavim. According to
you, it really has nothing to do with eetzumo shel yom.

Also, if eetzumo shel yom had nothing to do with it, why can't my tishuva
be michaper during the year on lo sa'asehs according to the chahcamim? Why
must I wait till YK? (halacha dalet)

For a lengthy dissertation on the ability of YK to be michaper, see
Maharal in his drasha to Shabbos Shuva. Also, see MME 2 pg. 96-105.

> This ties into my problem with the notion that the mezuzah provides
> shemirah, not only the mitzvah of the mezuzah. How would someone's life
> be better served by one thing or another based on the state of a kelaf
> he can't even know?

I don't understand your problem. Hahem created chukey hateva. There are
chukey hateva hagashmee and chukey hateva haruchani. Amongst the latter
chukim is the reality that a mezuzah protects. Of course it wouldn't
protect if you didn't perform the mitzvah but rather let it just sit
around in your house like Raziel haMalach but if you did the mitzvah,
a fringe benefit of that mitzvah is that it unlocks certain kochos
ruchaniyim that Hashem associated with this piece of parchment.

Incidentally, the same applies to the machlokes Rebbi and the Chachamim.
Both agree that eetzumo shel yom has special healing powers. It's just
that the Chachamim require tishuva in order to unlock those powers.

> Or qaddish. I can see someone getting sechar for being the force that
> motivated someone to say qaddish after his petirah. However, what if that
> person is r"l hit by a car shortly after his parent's death? Should the
> parent's neshamah get less of an aliyah because the child lived to say
> fewer qadeishim?

Receiving an 'aliyah' is not a right, it's a privilege. Some people have
it, some people don't. What about people who are childless? Would you ask
why they should suffer by not having any kaddeishim said for them? Hashem
has his cheshbonos re hatava that are perfectly suited for each person
and are calculated based on endless numbers of considerations. As long
as we don't relate to a particular hatava as a right, I don't see a
makom for a question.

Simcha Coffer 

On January 14, 2006, Daniel Eidensohn wrote:
> In the course of trying to clarify the Rambam's concept of Divrei Sofrim
> I just came across the following. Would appreciate comments concerning
> this derech of totally rejecting the validity of the Ramban's view. In
> particular does anyone else take this approach?

> R' Meir Bergman (De'ah VeDibur interview November 5, 2003 [[ R' Meir Tzvi
> Bergman [Son-in-law of Rav Shach]... "The Chazon Ish started to discuss
> a certain topic involving /Pesach Sheini/... 

I suggest that for some reason the Chazon Ish understood that R'
Bergman sub-consciously maintained that the Rambam could never hold
this position and thus had no business quoting the Ramban's shita thus
misrepresenting his (R' Bergman's) opinion about what the Rambam really
held. Especially after the CI informed him that the Rambam couldn't mean
that because of the misas b'd thing and R' Bergman kept pushing, the CI
decided to give him mussrar re being truthful and not hiding behind other
shittos. I suspect that if R' Bergman would have debated the CI directly
and advanced a counter-sevara to his ta'aanh from misas b'd, the CI would
have had a different reaction and would have had no choice but to respond.

This doesn't really answer your question as far as other's rejecting the
Ramban's interpretation of the Rambam. I just wanted to give a possible
explanation for the ma'aseh rav.

Simcha Coffer 

The world has changed a lot since the time of chazal especially related
to travel and we need to understand if these changes affect the din
of tefilas haderech. Here are some of the changes that have occurred
relating to travel.

1. Most travel is no longer considered unsafe. When I get in my car
every morning to drive to work I don't think twice about it 2. The
distinction between in the city and out of the city is no longer true
in many cases. Most people fell much safer driving in the Catskills then
driving through Harlem. Driving on a highway from Brooklyn to Queens is in
the city but driving in Monsey to the supermarket may be considered out
of the city. 3. This is related to 1, people travel all the time. Most
people commute some distance to work, this is normal and part of everyday
life. In the time of chazal yotze laderech was a big deal.

Given the above R' Shachter (in Nefesh Harav) says that R' Soloveitchik
did not say tefilas haderech when he commuted from Boston to NY to
give his shiurim. He felt that because it is a tefila b'es tzara (it is
pretty clear from the context of the gemara in berachos on 29b and 30a
which discusses the din of tefilas haderech, that tefilas haderech is
a tefila b'es tzara. The gemara mentions tefilas haderech right after
it mentions that a person who is in a dangerous place says a tefila)
and nowadays there is no perceived danger and it is routine that there
was no reason to say it.

RSZA seems to say a very similar idea to RYBS.

RSZA did not say tefilas haderech when he traveled from Yerushayim to
Bnei Brak. He explained his reasoning (in Halichos Shlomo) as follows:

1. In many places it is not considered as if you left the yishuv for
the following reasons:

         1. There are many other cars on the road
         2. The police regularly patrol the road
         3. There are houses on the side of the road

2. Traveling by car/bus is a normal activity. Whan a person gets up and
commutes to work he does not say he is going on a trip. The takana of
tefilas haderech was for someone who was yotze laderech, these kinds of
trips are not considered yotze laderech.

3. There is little or no danger of robbers and wild animals.

RSZA reasoning is very similar to RYBS. Basically, the world has changed
and it is no longer unusual or dangerous to travel between cities and
therefore the din of when you say tefilas haderech changes as well.

The gemara states that you only say tefilas haderech if the trip is 4 mil
outside the city. Is this a measure of time or distance? Chazal use the
word mil for both, sometimes distance sometimes time. If it is distance
(as the Mishna Berura holds), about 3 miles, then it comes out that if you
live in Monsey and drive 8 miles to the supermarket you probably need to
say tefilas haderech (if you don't accept the RYBS and RSZA's opinions
above). R' Ovadia Yosef holds that it is a measure of time. However,
this is not so simple either. How do you measure the time? Is it how
long this trip is going to take, or is it the average time? Imagine the
following case. You are driving today from A to B in the rush hour where
you estimate it will take 75 to 90 minutes. According to R' Ovadia you
would say tefilas haderech. Tommorrow you take the same trip in the
middle of the day and you estimate that it will take only 1 hour. Do you
say tefilas haderech? It could come out that for the same exact trip
1 day you say it and one day you don't. In short it is not very clear.

Bottom line, I would like to know what people's minhag is when they
commute to work, go to a simcha, etc. do they say tefials haderech or not?

Quoting S & R Coffer <rivkyc@sympatico.ca>:
> On January 14, 2006, Chana Luntz wrote:
>> I confess I would rather have thought that what made the gift problematic
>> was the understanding (even if mis-understanding) of the recipient.

> True. But only if the sender meant to mislead the receiver. If the sender
> did not mean to mislead the receiver, how can he possibly be responsible for
> the receiver's thoughts if every physical action he did was entirely
> permissible?

But every physical action he did was not entirely permissible. He sent a
thigh which was cut but the gid hanashe was not removed. That is assur.
It would have been entirely permissable to send a thigh that was not cut
(as a goy can eat a gid hanashe and he can benefit from it). It would
have been entirely permissible to send a cut thigh which had the gid
hanashe removed, as that would not have been intrinsically deceptive.

What he did was sent a thigh that was cut. Meaning, he sent a thigh
that was intrinsically deceptive. That constitutes a chafetz of issur,
despite the fact that if you divide it into its two component parts each
of them is completely mutar. I don't see the difference here to if you
have kosher cheese, that is completely mutar and you have kosher meat,
that is completely mutar. Stick them together and you have a chafetz
of issur.

Now, why is this particular chafetz assur. Because of the known deception
the combination will cause in the receiver. The fact that the giver
might be unaware of the deceptive nature of the gift only means that
he is b'shogeg, in the same way that if somebody is unaware of the
problematic nature of a milk/meat mixture, he is beshogeg.

> For example, let's say this man had two thighs, one with a gid
> hanasheh, one without. He put both in a box. He then informed his wife that
> the one without the gid hanasheh should be sent to the their goyishe
> acquaintance as a gift. When the messenger arrived to pick up the gift, he
> grabs the wrong box. Do you imagine that now this man, or his wife, are
> oiver gineyvas daas? It is highly un-mistaver.

These are the same issues raised with any chafetz of issur, misasek etc.
What if you had two boxes, one containing treif meat that was meant
for a goy, and one containing kosher meat that was meant for a Jew.
And the Jew came by and grabbed the wrong box and thereby ate treif.
In some circumstances the giver would be responsible for setting up a
misleading situation (two similar boxes not clearly labelled enough)
and in some situations he would not (the Jew assumed too much and it
was his mistake). Same here.

> I disagree. The Gemara "nems ohn for a pashtus" that a person is aware of
> the nuances of gift-giving and thus understands that the nochri will possess
> a higher measure of hakaras hatov due to the gid-less thigh. GD doesn't just
> apply to thighs. The din applies primarily to misleading people with your
> words or actions. 

Agreed. I think the difference between us is whether or not words or
actions that are instrinsically deceptive (ie any objective observer
would understand them to be deceptive, even if the individual did not
have such awareness) constitute a forbidden act. I am saying it is
dependent al daas rabbim, and you are saying it is dependent al daas
yachid. The fact that the gemora assumes that a person is aware of the
nuances of gift-giving is precisely the point. You are saying that in
the case of an individual who was not so aware, there is no issur, I am
saying, the gemora expects a certain standard of understanding of how
others will think, and if you do something that triggers deception in
the others, that action is forbidden. Obviously it has got to be based
on the "normal" other. There is no issur in sending a gift that 99%
of goyim will not misunderstand, even if the particular goy you send
to is an idiot and jumps to the wrong conclusion. (The situation might
change if you knew that the person in question was an idiot, but that is
because you are in fact then not sending to a stam goy, but sending to
a known type of idiot goy, and the rules relating to idiot goyim might
well be different, something that you might be expected to know).

>>> The issur of gineyvas daas is an
>>> extension of the requirement to be echad bipeh v'echad
>>> bi'leiv (see Rambam Hilchos Deos 2:7).

>> I am not quite sure how you see this from Deos 2:6 either. That halacha
>> has a list of related topics seperated by vavs. Echad bpeh v'cechad
>> bi'lev is the second on the list. The issur of genevas daas is third.
>> There are several others that come afterwards. 

> No there aren't. They are various manifestations of gineyvas dass and
> two-facedness. Take a look at the last line of that halachah...v'afilu milah
> achas shel pituy (first case in the Rambam) u'ginaivas daas (third case in
> the Rambam) assur, ela sfas emes v'ruach nachon vlev tahor" etc. in other
> words, all of the examples brought in this halachah are a violation of being
> dishonest. (See kesef mishna who also lumps all these halachos together.)
> You simply cannot be dishonest, a quality of the mind, without intending to
> do so.

>>                                                    If there are any
>> sub-categories should they not both be a subcategory of the first?

> Even if I conceded that, it's six in one hand etc. The first category is
> Pituy (obsequiousness) and chalukos (two-facedness) which amounts to the
> same thing as gineyvas daas.

I did not say they were not all related topics. The question dividing us
is one of objective versus subjective deceptiveness. Echad b'peh v'echad
b'lev is clearly an example of subjective deceptiveness (it does indeed
depend on what is on a person's individual heart). We are disagreeing
above about whether genevas daas is an example of objective or subjective
deceptiveness. I have no problem stating that all the categories set
out in this halacha are about deceptiveness. My opinion is that some
of them are about objective deceptiveness and some of them are about
subjective deceptiveness. You are saying they are all about subjective
deceptiveness. On that I disagree, ie I do not believe that genevas
daas is a sub-category of echad b'peh v'echad b'lev. But I don't have
a problem saying that it is either a sub-category or a linked category
of the first and last halachas, as they all relate to deceptiveness.

Regards
Chana
Chana Luntz

On January 15, 2005, Chana Luntz wrote:
>> True. But only if the sender meant to mislead the receiver. If the sender
>> did not mean to mislead the receiver, how can he possibly be responsible for
>> the receiver's thoughts if every physical action he did was entirely
>> permissible?

> But every physical action he did was not entirely permissible. He sent a
> thigh which was cut but the gid hanashe was not removed. That is assur.

Really? What if he would have sent a note along with the present explaining
that there was still a gid hanasheh attached? Would it still be assur?

> It would have been entirely permissable to send a thigh that was not cut
> (as a goy can eat a gid hanashe and he can benefit from it). It would
> have been entirely permissible to send a cut thigh which had the gid
> hanashe removed, as that would not have been intrinsically deceptive.

But the reason it was not permitted is because of gineyvas daas and
thus your reasoning is circular. You see, my point is that since every
action he performed is not *intrinsically* assur, the gineyvas daas can
only make it assur if he intended to be goneiv his daas. For example,
if he sent a letter along with the thigh stating that the gid hanasheh
was still attached, than the action would be permissible. Thus, even the
action described in the Gemara per-se is not intrinsically assur. It is
the misleading quality about that action that is assur. The action in
the Gemara is just an example of misleading someone, that's it.

> What he did was sent a thigh that was cut. Meaning, he sent a thigh
> that was intrinsically deceptive. That constitutes a chafetz of issur,
> despite the fact that if you divide it into its two component parts each
> of them is completely mutar. I don't see the difference here to if you
> have kosher cheese, that is completely mutar and you have kosher meat,
> that is completely mutar. Stick them together and you have a chafetz
> of issur.

You cannot refer to that thigh as a chafetz of issur like milk and
meat. It is assur to cook milk and meat together so as soon as you do
so, it becomes a chafetz of issur. It is not assur to possess a thigh
with the gid in it or even to give it to a goy if you inform him that
it still has the gid. A thigh with a gid hanasheh cannot constitute an
"intrinsically deceptive" item. It is only the subjective misuse of
the thigh that turns it into a chafetz shel issur. According to you,
every thigh should intrinsically be considered a chafetz shel issur
regardless of whether it has a gid or not because I can whack someone
over the head with it. The teretz is it is not intrinsically deceptive,
like bassar bi'chalav; rather my subjective intention turns it into a
utensil that was used to mislead.

BTY, if, according to you, this thigh now becomes a chafetz of issur, then
would it be mutar for the goy to give it to a Jew as a present? According
to you the Jew shouldn't be able to accept it because it now adopts the
din of a cheftza shel issur due to the goy being deceived. In fact, even
if the original Jew subsequently informs the goy about the gid, it should
still remain a cheftza shel issur. I doubt there is any such halacha.

>> I disagree. The Gemara "nems ohn for a pashtus" that a person is aware of
>> the nuances of gift-giving and thus understands that the nochri will possess
>> a higher measure of hakaras hatov due to the gid-less thigh. GD doesn't just
>> apply to thighs. The din applies primarily to misleading people with your
>> words or actions.

> Agreed. I think the difference between us is whether or not words or
> actions that are instrinsically deceptive (ie any objective observer
> would understand them to be deceptive, even if the individual did not
> have such awareness) constitute a forbidden act. I am saying it is
> dependent al daas rabbim, and you are saying it is dependent al daas
> yachid.

No, I'm not. I agree that daas Rabbim plays a role but only because the
daas Rabbim is a ra'aya that the Yachid probably means to be goneiv
dass; thus, a thigh like the one described in the Gemara is the closest
to a case of objective gineyvas daas. However, if lets say the sender,
for instance, thought he was sending a thigh without the gid hanasheh,
and if it ever became known to him that it had a gid hanasheh he would
immediately inform the receiver, then he is not oiver gineyvas daas at
all, even bishogeg.

>>>> The issur of gineyvas daas is an
>>>> extension of the requirement to be echad bipeh v'echad
>>>> bi'leiv (see Rambam Hilchos Deos 2:7).

> I did not say they were not all related topics. The question dividing us
> is one of objective versus subjective deceptiveness. Echad b'peh v'echad
> b'lev is clearly an example of subjective deceptiveness (it does indeed
> depend on what is on a person's individual heart). We are disagreeing
> above about whether genevas daas is an example of objective or subjective
> deceptiveness.

I don't even see our disagreement as being that pronounced. I'm sure
you would agree that not all gineyvas daas is objective. We are only
disagreeing whether there can be a case of absolutely objective gineyvas
daas regardless of the intentions of the goniev.

Simcha Coffer

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


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