Avodah Mailing List

Volume 17 : Number 105

Wednesday, August 9 2006

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Subjects Discussed In This Issue:
Date: Mon, 07 Aug 2006 13:10:04 -0400
From: hankman <salman@videotron.ca>
Re: The Power of a Beis Din to Create a Halachic Metzius

[R Chaim Manaster] hankman wrote:
> I do not understand R' Chaim's tzushtell. The question posed is
> about a condemned man who knows he is really innocent, whereas the
> case of Zimri is one who knows he is guilty. So the inference can
> only extend to one who is guilty but not extended to one who knows
> he is innocent.

RYGB wrote:
> Isn't it a kal va'chomer?

That's just my point, the pircha to the kal vechomer is obviously that
Zimri knew he was guilty, so it is not obvious that he could kill Pinhas
when he was attacked him.

Kol Tuv
Chaim Manaster

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Date: Mon, 7 Aug 2006 21:04:32 -0400
From: "Rich, Joel" <JRich@Segalco.com>
RE: Lo Tasur

"Rich, Joel" <JRich@Segalco.com> wrote:
> We're all familiar with Rashi's statement that even if they tell you 
> that right is left you have to listen....        Has anyone seen a 
> reconciliation of this position with the mishneh in Horiyot which 
> states that a member of bet din or talmid raui lhoraah can not rely on
> bet din and if he acts on bet din's psak, knowing it's wrong, he's 
> chayav (according to rashi of misunderstanding the meaning of lshmoa 
> dvrei chachamim)

[R' Zev Sero:]
> I'm not sure I understand the problem. I don't think Rashi holds that
> they actually change the underlying halacha; rather, there is a mitzvah
> to obey them even when they're wrong. Seen this way, there are several
> possibilities:
> 1) They say something is forbidden, when you know that it's really
> permitted. You may not do it.<Snip>

R"AM(mizrachi) as quoted in the Yad Hamelech states "afilu tachshov
blibcha shehu toeh bdin... vaal tomar eich ehyeh ochel hachelev
hazeh... elah tomar kach tzivanu hanoten et hatorah shenaaseh kchol
asher yorenu hashofet hahu... vlo yeitzeih mipihem ki im haemet"

Joel Rich

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Date: Mon, 7 Aug 2006 22:57:54 -0400
From: MPoppers@kayescholer.com
Re: music

(May this learning be a z'chus for my "Elef laMateh" partner.)

In Avodah V17 #104, RDR replied to RCBK:
> For three examples see OH 181:10, OH 339:3, and YD 116:1.

Re OC 181:10 (mayim acharonim), doesn't Biur HaGRA disagree with Tos'fos
(re Tos'fos per se, RRW has noted more than once on this forum that they
often attempted to reconcile existing behavior with the straightforward
understanding of TB)? OC 339:3 (shema y'saqain k'lai shir), esp. hagahos
RMA, once again is Tos'fos, and I don't see any significant comment
by Biur HaGRA ad loc. YD 116:1 (giluy) is...you guessed it, based on
Tos'fos, but this time the Tur noted their reasoning -- Biur HaGRA
seems to echo the TaZ, but TaZ then refers to what he wrote earlier
(115:10 on YD 115:2), ayin sham.

> See Biur HaGra ad. loc., which concurs with the ruling of the Shulhan
> Aruch.
> I fear you were misinformed.

Of your three examples, RDR, only the third seems to uphold your
GRA-related point, but as TaZ 115:10 noted, mishum giluy could be a
situation where "yad'u hakol" that it was the one and only reason for
the g'zairah, such that the g'zairah no longer applied (or applies) when
the ta'am no longer applied (or applies), mah she-ain kain by your other
examples (I don't know whether Tos'fos would also hold "yad'u hakol"
that only one reason exists by mayim acharonim or clapping, but I don't
see any evidence that GRA holds that way or that he feels the g'zairos
of mishum melach S'dom or shema y'saqain no longer apply hayom). I look
forward to hearing from you what I'm missing in trying to understand
your response. Thanks.

All the best from
 -Michael Poppers via RIM pager

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Date: Tue, 8 Aug 2006 06:50:07 -0400
From: Micha Berger <micha@aishdas.org>
Re: Noshim daatan kalos

On Thu, Jul 27, 2006 at 05:01:06PM -0400, Shmuel Weidberg wrote:
: The Chinuch also seems to take a similar view, but I am taking the view
: as I was taught in Yeshiva that the Torah is a perfect system of justice,
: because it was given to us by Hashem who is omniscient.

But is halakhah's jurisprudence about justice, or about obtaining
kaparah? Tzedeq and mishpat are often paired in the pasuq, which to
me implies they mean somewhat different things (rather than one being


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Date: Tue, 8 Aug 2006 07:01:48 -0400
From: Micha Berger <micha@aishdas.org>
Re: music

On Thu, Jul 27, 2006 at 09:36:07PM -0500, CBK wrote:
:> For a taqanah we NEVER go based on our understanding of the intent,
:> only the intent if codified. If no reason is included in codification,
:> we must treat it "as a choq".

: The GRA and talmidei Ari"zal taught that even when a reason is given
: for a takanah, and that reason is no longer applicable, it should
: still be observed because the reasons given in the Gemara are only
: the chitzonius of the takanah and have much deeper reasons that are
: still applicable according to sod.

My point was that I believe this rule only applies when:
1- It's a formal taqanah made in Sanhedrin, and
2- he reason was given in the gemara as an explanation of the taqanah,
not when the reason was given within the text of the taqanah itself.

Beis din including a reason within the taqanah is taken as an implied
conditional. "Do not do X so as not to cause Y" is a way of saying that
the taqanah was only made in cases where X could actually lead to Y.

In the case of the 3 Weeks, we're not talking about a formal taqanah,
but a minhag. AND, it's unclear whether the ikkar minhag was a set of
practices, or a nihug aveilus. If the latter (as I presumed), then music
which feels the same as instrumental music isn't really an extension of
the minhag. So, I thought our case would be valid on both grounds.


Micha Berger            May it be Hashem's Will that Yosef Shelomo ben Devorah,
micha@aishdas.org       all his fellow soldiers, and all the residents of
http://www.aishdas.org  northern Israel return home soon, in health of spirit
Fax: (270) 514-1507     and health of body, in peace and in security.

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Date: Tue, 8 Aug 2006 17:10:20 -0400
From: "David Riceman" <driceman@worldnet.att.net>
Re: music

From: <MPoppers@kayescholer.com>
> Of your three examples, RDR, only the third seems to uphold your
> GRA-related point, but as TaZ 115:10 noted, mishum giluy could be a
> situation where "yad'u hakol" that it was the one and only reason for
> the g'zairah, such that the g'zairah no longer applied (or applies) when
> the ta'am no longer applied (or applies), mah she-ain kain by your other
> examples...

I said two things in my initial post. The first was "Certainly if the
Gaon held that way he was disagreeing with normative Ashkenazic psak."
All three of the examples I cited are evidence of that; as you noticed,
all stem from Tosafoth.

The second thing I said was "See the Biur HaGra in all three places ...."
I suppose I should have elaborated.

1. Giluy: The Gaon deduces that we can make exceptions for giluy not
because of "yad'u hakol", as you cited from the Taz, but because of
"yayin mevushal v'harbeh kayotzei bo" (I left the SA in the living room
so I may be citing a bit inaccurately). In other words, he knew that
the gezeirah of giluy was not generally applicable because the gemara
makes so many exceptions.

2. Mayim Aharonim. The Gaon points out that of the three sugyoth on the
subject the sugya in the first perek of Eiruvin specifically refers to
mahaneh (i.e., an army camped in the field); it says that mayim rishonim
is not obligatory there but mayim aharonim is because of melah s'domis.
He concludes that outside of a mahaneh there is a heikesh between mayim
rishonim and mayim aharonim and therefore there's no ptur. Part of his
motive is to harmonize the gemara with a Raya Mehimna.

3. The Gaon doesn't say anything about our inability to tune instruments.

Nowhere in any of these cases does the Gaon present RCBK's general rule.
In the first two cases he tries to deduce the rules of the gezeirah from
context. In the third case he doesn't presume that he knows what terms
the gezeirah had.

I was trying to make an argument from silence. That the Gaon doesn't
state his principle in these three cases, where it is clearly applicable,
is a strong hint that he didn't believe it. Normally the Gaon doesn't
pasken in his Biur, so that he paskens against the Rama only in one of
those three cases is less strong evidence. Nonetheless, I think it's
worth remarking on.

David Riceman

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Date: Tue, 8 Aug 2006 16:27:26 -0400 (EDT)
From: "Micha Berger" <micha@aishdas.org>
Re: Erev Shabbos News Reports from Israel

R Saul Mashbaum wrote:
> It is not obvious to me that the news reported
> by the JP is available *only* through their chillul Shabbat, and not
> elsewhere, from non-chillul Shabbat sources.  Even granting this point, the
> principle that RMB cites, that something one could not obtain but for chillul
> Shabbat is assur b'hanaa, is unclear to me. Is something in this category
> assur b'hanaa forever, or only "bichdei sheyaaseh"? ...

Let's take a classic case, a Jew r"l cooks on Shabbos.

If it's bemeizid, it's assur behana'ah. Even though I could have gotten
the same food by a nachri having done it.

If it's beshogeig, the SA (318:1) holds it's assur only until bichdei
sheya'aseh (IIUC), while the MB cites the Gra (who in turn is based
on a Tosados), who holds that it may be used on Shabbos. This is the
machloqes R' Yehudah and R' Meir on Chulin 15a.

Here it's not only bemeizid, the hana'ah is more distinctly because it's
JPost. People who read JPost generally because they want JPost's writers
and editorial policy. Not just to get the news they can get from any AP
or Reuters' source. The articles are unique and only reachable through
chillul Shabbos. Not that it's much of an issue, as "a nachri could have
done it" doesn't matir anything.


Micha Berger                 Life is complex.
micha@aishdas.org                Decisions are complex.
http://www.aishdas.org               The Torah is complex.
Fax: (270) 514-1507                                - R' Binyamin Hecht

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Date: Wed, 09 Aug 2006 09:47:45
From: "Dr. Josh Backon" <backon@vms.huji.ac.il>
Putting oneself in danger

R. Lipman Minden asked:
>R' Moshe Feldman wrote:
>> Ro-ie and some of his men were searching a house for Hizbullah
>> weapons when a terrorist lobbed a grenade into their room. On
>> instinct Ro-ie threw himself on top of the grenade absorbing the
>> full blast, with Shema Yisrael on his lips.

>You know that I'm sceptic whether the American concept of heroism has any
> place in Toure-true Judaism. So, is one allowed to do something like that?

[Here is an old but relevant message I posted almost 2 years ago]

The recent situation in the Gaza Strip where 11 soldiers were blown up
and other soldiers had to risk their lives to retrieve body parts for
kevura, has lead to extensive debate. To what extent can one (or must
one) put oneself in danger? Choshen Mishpat 420:31 indicates that one
who injures himself even though he isn't permitted to is not subject to
punishment. See also Yoreh Deah 155:1 in Shach s"k 7.

Halachic discussion on danger has ranged from diets (Iggrot Moshe CM
II 65), aesthetic plastic surgery (IM CM II 66, Chelkat Yaakov III 1,
Minchat Yitzchak VI 105 #2, Tzitz Eliezer XI 41), performing a mitzva
(e.g. drinking wine at Seder for someone with a severe allergy to wine
(Halacha u'Refuah Sefer Daled p. 125), undergoing risky medical procedures
(Shvut Yakov III 75; Achiezer II 16 #6; Binyan Tzion I 111; Beit Meir
YD 339 #1; Yad Halevi I YD 207; Harav Unterman in NOAM Vol. 13, p. 5;
Tzitz Eliezer IV 13 and X 25 #17; Shearim Metzuyanim B'Halacha 190 s"k 4;
Mor u'Ktziya 328), volunteering for medical research, and others.

Choshen Mishpat 426:1. Although the Yerushalmi indicates that a person
MUST place himself in a *possible* risk in order to save someone else,
see the SM"A there that this isn't brought down since most Rishonim
didn't hold this way.

HOWEVER: the Pitchei Tshuva CM 426 s"k 2 indicates that although
a potential rescuer should evaluate risks, he shouldn't be overly
cautious. The Mishna Brura OC 329:19 states that there is no obligation
in risking one's life to save another but still does mention this
Pitchei Tshuva. More relevant is the Tzitz Eliezer XIII 100 who rules
that in time of war, one may take extraordinary risks in order to save
others. Rav Elyashiv in his Kovetz Tshuvot #124 (re: doctors' chiyuv to
treat everyone any time of day or night) states that one must undergo
pain and suffering in order to save the life of someone else (he does
mention the Rambam in Sefer hamitzvot Lo Taaseh #297 and the SM"A in CM
426 quoting the Yerushalmi).

A Jewish soldier [and I was a medical officer in the 1982 War in
Lebanon] must think of the pesukim in Parshat Shoftim (Devarim 20:1-9)
especially ... "al yerach l'vavchem, al tir'u v'al tachp'zu v'al ta'artzu
mipneihem". In fact, this is brought down as halacha l'maaseh by the
Minchat Chinuch 525 that one isn't permitted to be afraid. Not that like
the wizard in the Wizard of Oz, I wasn't petrified :-)


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Date: Wed, 9 Aug 2006 08:45:14 -0400
From: "David Riceman" <driceman@worldnet.att.net>
Re: music

From: "David Riceman" <driceman@worldnet.att.net>
> 2. Mayim Aharonim. The Gaon points out that of the three sugyoth on the
> subject the sugya in the first perek of Eiruvin specifically refers to
> mahaneh (i.e., an army camped in the field); it says that mayim rishonim
> is not obligatory there but mayim aharonim is because of melah s'domis.
> He concludes that outside of a mahaneh there is a heikesh between mayim
> rishonim and mayim aharonim and therefore there's no ptur. Part of his
> motive is to harmonize the gemara with a Raya Mehimna.

I realized last night that this would be clearer if I translated the
Gaon's opinion into Yeshivish. He held that there are two dinim in MA:
a din in kedushah and a din in sakkanah. The point of the gemara in
Eiruvin is that even in mahane, when the din in kedushah is in abeyance,
the din in sakkanah still applies.

According to RCBK the Gaon couldn't have made this argument since it
implies that he did know the reason for the gezeirah, which is impossible.

David Riceman 

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Date: Wed, 09 Aug 2006 14:05:05 -0400
From: rabbirichwolpoe@aol.com
Re: Music

From: ssvarc@yeshivanet.com
> Why not? The minag/halacha for hundreds of years is not to listen
> to music.

What are the sources for this ancient Minhag?

Maybe it's not quite so ancient?

Maybe it applies all year 'round?

I doubt that there is any source earlier than the mid-20th centru
addressing the case of passively listening to music I really do not
see comparing a tape recording to the actual playing of an instrument.
Plus playing an instrument privately w/o an audience is probably not
assur at all. furthermoe playing music of a mournful nature is almost
for sure ok. {See Mo'ed Kattan} Once upon a tim I was shushed for playing
3-weeks melodies on the piano e but probably becasue the neighbor had
no clue as to the nature of the songs I was playing.

Kol Tuv

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Date: Wed, 09 Aug 2006 13:52:22 -0400
From: rabbirichwolpoe@aol.com
Re: Halachah k'Mishna Brura

R. Hersh Goldwurn ZTL in his Halachic compilation at the end of the Yom
Kippur Machzor makes the MB the default but specifically notes that he
will cite cases taht either
A) the MB did not adress
B) most/many congregations do NOT follow the MB

QED he did not believe that the Halachah was always like the MB albeit
it was the default.

Kol Tuv

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Date: Wed, 9 Aug 2006 12:47:27 -0400 (EDT)
From: "Micha Berger" <micha@aishdas.org>

R Elazar M. Teitz wrote [to Areivim]:
>> <Just pointing out that the simple understanding of the Misha in
>> Taanis 4:8 is that the women used to *dance* in the vineyards, and
>> that the men would see them dance (as the women were saying "bachur
>> sa na einecha" while dancing).  Today, we seem to assume that men are
>> not supposed to see women dancing because we say that it's not
>> tzniusdik.

>      It doesn't say "rokdos," it says "cholos," which I believe means
> going around in a circle, a la the yeshivishe two-step, not any fancy
> steps, which might indeed be considered as calling too much attention
> to physicality, and hence could be considered not tzniusdig.  It is
> this distinction which is given as a heter for yeshiva-type dancing
> at simchas on Shabbos, as not being a violation of ein m'rakdin.

Was wondering about that. The bachurim often bang out the rhythm
with their "inner" (in relation to the circle) foot. Wouldn't this be
explicitly the problem of ein merakkedin?


Micha Berger             May it be His Will that Yosef Shelomo b' Devorah
micha@aishdas.org        - among all our soldiers and all the residents of
http://www.aishdas.org   northern Israel - return home soon, healthy in
Fax: (270) 514-1507      spirit and body, to peace and security.

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Date: Wed, 9 Aug 2006 13:55:14 -0400 (EDT)
From: "Micha Berger" <micha@aishdas.org>
Re: Geirus while still believing in Jesus as a prophet

R Jonathan Baker wrote:
> Clearly Judaism in all forms defines itself at least in part as
> "not-Christianity".

There is a strong argument that the 13 ikkarim are defined based on the
contrast between our beliefs and those current in the Rambam's time.

There is also, as R' Elliott Shimoff <http://www.aishdas.org/shimoff> used
to point out on scjm, halachic meaning to the notion of faith community.
If someone returns to Yahadus from being a J Witness, for example, we
would lechatkhila ask him to go to a miqvah before counting him toward a
minyan. A BT who grew up R (Reform) need not, even lachatkhilah. Why? The
Witnesses share more beliefs in common with us than R does -- they
believe yetzi'as Mitzrayim and maamad Har Sinai as historical events,
and unlike most Notzerim, aren't trinitarian. But, bottom line, R is a
*Jewish* community, regardless of the distance between R and Yahadus.

Recall Rus's words -- Ameikh ami, ve'E-lokayikh E-lokai. It's not enough
to be a believer, joining requires fully leaving one faith community
and entering the other.

Also, I think that the two words "Shema Yisrael" aren't merely an
introduction to the doxology, but itself part of the essence of what it
means to accept ol malkhus Shamayim.

A Notzri of a form that has no problems with shituf and follows the SA
who stays in a community of such people (web examples by private email
on request) rather than joining our sociological group, didn't do that.

All that said, I don't think any of the above has much to do with RAA's
original case and the status of the person described in the subject line.
Because he did join, even if lechatkhilah we wouldn't have accepted him.


Micha Berger             A cheerful disposition is an inestimable treasure.
micha@aishdas.org        It preserves health, promotes convalescence,
http://www.aishdas.org   and helps us cope with adversity.
Fax: (270) 514-1507         - R' SR Hirsch, "From the Wisdom of Mishlei"

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Date: Wed, 09 Aug 2006 19:15:23 -0400
From: "Prof. Levine" <llevine@stevens.edu>
How does one dance in front of the Kallah?

On 08/09/2006, Micha Berger wrote [on Areivim]:
>On Tue, Aug 08, 2006 at 01:23:40PM -0400, Prof. Levine wrote:
>: The Gemora in Kesuvos (17) asks, "How does one dance in front of the
>: kallah?"

>Except that it's clear from the answers -- "kemos shehi" vs "kalah na'ah
>vachasudah" -- that the question isn't really about dancing.

>(If anyone wants to continue this train of thought, we've moved into
>Avodah territory.

I am taking you up on this and sending this to both Areivim and Avodah.

Toby Katz wrote:
> When the gemara said that the men dance for the kallah at a chasuna --
> and BTW it is a mitzva to do so -- they most definitely absolutely did NOT
> have in mind that the kalla slips away from the dancing women, goes over
> to the mechitza and puts one eye up to any tiny crack she can happen to
> find in order to watch the backs of the dancing men go round and round!
> This is plain ridiculous.

> Question:  Keitzad merakdim lifnei hakallah?

> Answer:  Merakdim LIFNEI hakallah!

> Right in front of her so she can enjoy it!!! While she is sitting with
> the chassan and they are laughing and having the time of their lives!

It is indeed clear from the answers that the question is not really
about dancing. Yet the plain "teitch" of the words "Keitzad merakdim
lifnei hakallah?" is "How does one dance in front of the kallah?"

Furthermore, at
it says "HaRav Shach asked the Brisker Rov zt'l: "Why was the Gaon so
joyful when the sefer Torah was outside and noticeably less when it was
returned? What determines the degree of rejoicing?"

The Brisker Rov replied that one can only dance for a particular person
or object when it is present and in view. The Gemora in Kesuvos (17)
asks, "How does one dance in front of the kallah?" When the kallah is
there, one can dance. If the object of the dancing is not there, it is
altogether out of place to dance.

While the sefer Torah was outside the Aron Hakodesh, the Gaon danced
in front of it. But when it had been returned, dancing was no longer
appropriate. We are not on such a high level that we can claim to be
standing before Hashem and dancing before Him. We can only express joy
when we ourselves are joyful."

 From this it seems that the Brisker Rov took the gemara to mean dancing,
not something else. Therefore, why indeed does the gemara give the answer
that it gives? It seems to go against the simple meaning of the words.

Yitzchok Levine 

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