Avodah Mailing List

Volume 26: Number 101

Sun, 31 May 2009

• 1. Re: rishonim, yevamos 24a, ain mikreh..... (rabbirichwolpoe@gmail.com)
• 2. Re: eruv tavshilin (Zev Sero)
• 3. Re: eruv tavshilin (kennethgmil...@juno.com)
• 4. eruv tavshilin (Eli Turkel)
• 5. To Sleep Perchance to Dream (Rich, Joel)
• 6. Re: eruv tavshilin (rabbirichwol...@gmail.com)
• 7. goy vs chiloni (Eli Turkel)
• 8. Stam yeinam of Giyur Candidates (Michael Makovi)
• 9. Re: Tinok Shenishbah today - opinion of Gedolei (Michael Makovi)
• 10. Re: Stam yeinam of Giyur Candidates (Michael Makovi)
• 11. 70 nations (Saul Mashbaum)
• 12. Re: More on davening late Shavuous (Prof. Levine)
• 13. FW: More on daveneing late Shovuos (SBA)
• 14. Learning on Shavuos - Two Scenarios (M Cohen)
• 15. 70 reasons for saying megilas Rus on Shavuos (SBA)
• 16. Re: Learning on Shavuos - Two Scenarios (Prof. Levine)
• 17. r. ovadia; bullfighting; eiva, etc.... (Chana Luntz)

HB:
> What then should we do with: scriptural commands to: 1. give 40 lashes
> (not 39) 2. count omer 50 days (not 49) 3. ayin tachas ayin, shein tachas
> shein literally (not mammon); 4. eat matzah 6 days v. 7 days; 5. not
> outside on shabbas (a la karaites). 6. lo tevashel gdi b'cheilev imo
> (without any attendant milk/meat prohibitions besides for the specific
> ones mentioned in the Torah), etc???

Ok slow down

> What then should we do with: scriptural commands to:
> 1. give 40 lashes (not 39)

Up to not including

> 2. count omer 50 days (not 49)

Up to not including.
AISI it's linguistics

> 3. ayin tachas ayin, shein tachas shein literally (not mammon);

Legal idiom meaning just compensation or no more than an eye for an
eye. See avodah archives

> 4. eat matzah 6 days v. 7 days;

2 psukim. This follows principle 8 of Rabbi Yishmael. We are reuqired
to eat matza only at seder. The other p'sukkim create an asei to avoid
hametz.

> 5. not outside on shabbas (a la karaites).

Don't leave your place
Place is defined as a 2000 cubit radius. So what? What if karaite lived
in Trump tower? Would he be restricted to his bedroom? Bathroom?

> 6. lo tevashel gdi b'cheilev imo

It is taken literally

> (without any attendant milk/meat prohibitions besides for the specific
> ones mentioned in the Torah), etc????

See Onkelos. So the literal meaning is not rejected just expanded.

Peshat is not necessarily being literal to the point of pathology?
Do you want your cake and eat it too?

Torah is written in flowery Hebrew, akin to poetry. Going overboard
into literlism isn't necessarily even being faithful to philology

And the Moreh Nevuchim cited is really cherry picking. The Rambam has
50 deifintions (or more) that must NOT be seen literally. So what are
you really saying? That the Rambam is wrong because he failed to give
a thoroughly exhaustive of every similean mataphoran analogyan idiom? I
mean how high is up?

GUT Yontiff
RRW
Sent via BlackBerry from T-Mobile

Eli Turkel wrote:
> If one is eating out all meals and doesnt need to cook is there any
> purpose in making an eruv tavhsilin (beracha levatala?)

I don't think so, but don't forget that there is also candle lighting,
which is explicitly covered in the text of the eruv.   Whether one
needs to make one just for that is another question, but I don't think
it would be a bracha levatala, because one is also being mezakeh the
eruv to everyone else in the city.   Still, one could make it without
a bracha, or even just ask someone else to explicitly have one in mind
in his eruv.  Especially if that someone is ones host for one of the
Shabbos meals.   Another solution would be to deliberately obligate
oneself in the eruv by adding water to the urn on Friday afternoon.

-- 
Zev Sero                      The trouble with socialism is that you
z...@sero.name                 eventually run out of other people?s money
                                                     - Margaret Thatcher

Regarding an eruv tavshilin which one plans on not needing, R' Micha Berger wrote:
> The berakhah is on the mitzvah of making an eruv. In order
> for your question to stand, you would have to argue that an
> eruv that isn't used isn't an eruv, and thus there is no
> mitzvah. Interestingly, this seems to be assumed -- and I
> don't see why.

Please compare it to the following case:

One plans on *not* eating bread. But I'm not asking about Hamotzi, I'm
going to ask about the bracha on the mitzvah of washing hands. A netilas
yadaim which isn't used -- Is it a real mitzvah of netilas yadayim, or is
it not?

It is one thing to plan on eating bread, washing, and then changing one's
mind. In such a case, we say that the washing was a mitzvah, and there's no
bracha levatala. But no one would suggest that we could say such a thing
when one plans on *not* eating bread.

I would suggest that the similarity is simple. Both netilas yadayim and
eruv tavshilin are procedures which Chazal required us to do as a
*preparation* for another act, such that without the preparation we are
forbidden to do the other thing. As long as you're planning to do the other
thing, then, yes indeed, the preparation is a mitzvah. But if you're not
planning to do the other thing, then the preparation is *not* a mitzvah.

Hmmm... Are there any other *optional* acts which are *forbidden* unless a certain mitzvah-procedure is done beforehand?

Akiva Miller

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<<I forgot to add the Shemiras Shabbos keHilchasah's conclusion (44:12) --
make the eruv without a berakhah, safeiq berakhos lehaqeil.
So the answer to RET's question is "yes", at least we're choshedim for
berakhah levatalah.>>

I later saw that ROU also paskens that if ET is done only for lighting
of candles
it should be done without a bracha

-- 
Eli Turkel

An earlier post discussed the "learn till you drop" model.

Question: Assume for the moment that the research done on sleep
deprivation etc. for other fields of endeavor implies that the net long
term knowledge gained is greater if one gets appropriate rest and
studies somewhat less than if one studies under conditions of sleep
deprivation. (comments welcome as to whether my  understanding of the
research is  accurate ).   Which is a greater kiyum of the mitzvah  of
talmud torah - learn till you drop or learn to maximize
knowledge(perhaps there are 2 mitzvot - one to learn all the time and
the other to know kol hatorah kula?)

KT
Joel Rich
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Zev:
> I don't think so, but don't forget that there is also candle lighting,
> which is explicitly covered in the text of the eruv.

Ein hachi nami
FWIW
In an aborted post I was going to ask: "Are they lighting their own
candles or being mishtateif with their hosts?"

Lich'ora if the hosts lit for them maybe no eruv is needed

Gutn Yontiff
RRW
Sent via BlackBerry from T-Mobile

I gave a shiur on shabbat on a halacha of . Zilberstein that to me had a
surprising chiddush

The question was if a chiloni opened the front door by pushing an electronic
button could one enter the building? (lets assume CI for electricity)
He answer was that yes because one did not have direct benefit from
the chillul shabbat but what he call "mavriach ari",  He then asked asked a
question from a MB who disallows using the contents of a put when a Gentile
opened the cover on shabbat for a Jew. Why should it be different?

His answer was that the was a decree against amira le-akum and so a knas
if one did request (or was done for his benefit). There is no such decree
against a nonobserving Jew.
The upshot is the action of a Jew on shabbat can be kulah then that of a goy
(Of course one cannot benefit from a direct chillul shabbat but here it
is indirect - mavriach ari)

I thought of a similar case were according to most poskim a chutz learetz Jew
can ask an Israeli Jew to fo melachah on the second day of yomtov but he
cant ask a goy.

Nevertheless it seems strange that a goy doing benefit on shabbat is more chamur
in some cases than a chiloni doing work

-- 
Eli Turkel

At my yeshiva, there is a situation of many people in the process of
doing giyur. Now then, we have an issue of yayin nesech; students
bring wine to the communal Shabbat meal, and then we have a whole
thing about making sure that no non-Jews touch the wine, or pour
seconds into their cups without washing their cups out first, etc.
It's like walking on eggshells. But surely, we don't want to embarrass
these people!

(Whether or not the averah of shaming a ger technically applies to
these people, I don't see a need to exploit loopholes and be a
scoundrel with the Torah's permission; "Do what is good and right in
the eyes of G-d". In any case, it is an averah to shame people in
general, gerim or not. And even if one says this mitzvah (to avoid
shaming) only applies to Jews, again, why should we exploit loopholes?
Plus, there's always Meiri, who seems to be halacha l'maaseh according
to R' Hirsch, R' Kook, R' Ahron Soloveichik, R' Herzog, R' Yosef
Eliyahu Henkin, R' Yehiel Weinberg, R' Hayim David Halevi...etc. etc.
according to Rabbi Dr. David Berger.)

I asked Rabbi Marc Angel if he knew a solution. He said he knew no
halachic solution, other than a teshuva of the Rambam that honey
renders wine impervious to nesech. He suggested that people put a
smidge of honey (the tiniest little insignificant bit will do) into
their wine before any gentiles have a chance to handle it.

Later, I was speaking to a rabbi of mine, and he told me that Rabbi
Nathan Lopes Cardozo had showed him, a few years ago, a teshuva of
Dayan Grossnass of England, Shu"t Leib Arye volume One or Two (he
didn't remember which, and I haven't had a chance to investigate),
that ruled that once a person commits to doing giyur, his yayin is no
longer a halachic issue; he is a yehudi as far as his yayin is
concerned.

A question that's occurred to me, and which I have sent to Rabbi Angel
(so his reply is pending): what of people who have not committed to
doing Orthodox giyur, but only because they already (wrongly) believe
themselves to be Jews. That is, people with a Jewish father, people
with non-Orthodox giyur, etc. These people honestly believe they are
Jewish, and were they to be convinced that they truly are NOT Jewish,
they'd of course commit to doing Orthodox giyur. The only reason they
don't pursue Orthodox giyur is that they don't realize they need it to
be Jewish. Now then, should these people be any worse than a stam
non-Jew who's committed to giyur? It seems to me that these people's
wine should be kosher just as the Orthodox giyur candidate's is.

(While on the subject of people doing giyur: many Israelis seem to
think it is perfectly alright to treat these people as shabbos goyim,
asking giyur candidates to turn on their lights. I hope I don't need
to explain why I find this utterly disgusting, revolting, wretched,
and putrid. These people exploiting the giyur candidates have no
derech eretz, have no humanity. I have spoken to giyur candidates
about this; almost invariably, they find this extremely embarrassing.
I cannot understand why these people will come to my yeshiva and ask,
"Do you have any non-Jews here?"; it's absolutely horrible, and as far
as I'm concerned, these people are rejecting the mitzvot bein adam
l'havero bichlal; these people, as far as I'm concerned, may as well
come up to the faces of these giyur candidates, spit, kick, throw mud,
and taunt and laugh and mock and deride; it's all the same in the end.
I do not understand how anyone who fears G-d can behave in such a
manner.)

Michael Makovi

-- 
Michael Makovi
????? ???????
mikewindd...@gmail.com
http://michaelmakovi.blogspot.com

R' Micha Berger wrote,
> I would draw another distinction than the one RnCL makes or RAM is trying
> to avoid -- there are halakhos that depend on the person being kasher,
> and there are halakhos that depend on the substance of emunah.
>
> Eg with respect to tefillah... An atheist or someone with a warped
> definition of the Deity might not be culpable for his beliefs. He could
> be letei'avon, he could be oneis, shogeig, etc... Ebven perhaps someone
> RAM couldn't call a "sinner" nor even letei'avon. But he doesn't believe
> in E-lokei Avraham.
>
> Should you count him for a minyan? What's he davening to?
>
> That's what I mean by the substance of emunah. Regardless of
> culpability, the belief itself is at odds with the mitzvah.
>
> Another case: Stam yeinam. Regardless of guilt or culpability, if the
> person is capable of sanctifying wine to something other than avodas
> Hashem, where both the avodah and the Deity are as the Torah teaches,
> one of the sevaros for stam yeinam (a gezeirah atu yayin nesekh) applies.
> Is he included?

I accept this distinction, but I'd point out that many/most(?) Jews
today, even if they aren't observant, still believe in G-d. So
according to the above, many/most(?) could still be counted in a
minyan.

Kal vachomer with stam yeinam; either these nonobservant Jews believe
in Hashem (ati shapir), or they're atheists or agnostics. If the
latter, we really don't have to be afraid that they'll sanctify their
wine to another god!

This is all assuming there are no factors besides those given by R' Micha.

------------------------


[Avodah] Stam yeinam of Giyur Candidates

Michael Makovi

-- 
Michael Makovi
????? ???????
mikewindd...@gmail.com
http://michaelmakovi.blogspot.com

> A question that's occurred to me, and which I have sent to Rabbi Angel
> (so his reply is pending):

I just received Rabbi Angel's reply. In short, he says that whereas
the Orthodox giyur candidate is on the track towards becoming a Jew,
non-Orthodox individuals who mistakenly believe they are Jews (R/C
converts, children of Jewish fathers, etc.) are not on that same
"right track", so they cannot be availed of Dayan Grossnass's ruling.

In order to argue further, I suppose that I (or someone else) would
have to look at Dayan Grossnass inside, and see what his reasoning is,
and whether his reasoning is exclusive to those on the track towards
being kosher Jews, or whether his reasoning can be extended to those
who are non-Jews due to shogeg, who mistakenly believe they are
already Jews.

Michael Makovi

RNYedid:
>>
I heard a while back that there are two "sets" of 70 nations; one from
Noach and one from Esav and Ishmael. Any sources on this?

>>

See R Eliyahu Kitov's Sefer HaTodaah, Vol I p 215 (in the 3 volume edition )
"Yishmael V'Eisav" in the chapter "Chag HaSuccot". He cites the
"Chiddushei ubeurei haGra" (?) to Succa 55b. The 70 nations derive
from Noach,  but there is a kabbalistic concept, from the Ari, that
"all 70 nations draw sustenance from the descendants of Avraham - 35
are connected to Yishmael, and 35 to Eisav". In a  facinating passage,
REK explains the 70 parei hachag on this basis, ayen sham.

Saul Mashbaum

At 08:32 AM 5/30/2009, SBA on Areivim wrote:
>Another issue relates to the second day of Shavuos. There is an enactment to
>keep two days of yom tov in Chutz LaAretz (on account of sefeika d'yoma-an
>uncertainty in the day that rosh chodesh was declared). Can we daven early
>on the second night (Friday night), or do we have to wait until the time the
>stars come, just as we do on the first night of Shavuos?...

The YI of Ave J had a minyan on Friday (the first day of Shavuous at 
7 PM for Mincha followed immediately by Maariv.  Over 100 people attended!!!

When someone asked a RY at Yeshiva Torah Vodaath about davening early 
on Friday when the second day of Shavuous is Shabbos, he showed him a 
Mogen Avraham that says that one should daven earlier on this Friday, 
so that people stop cooking before Shabbos begins.  When this person 
said, "But I never recall this being done, the RY said, 'So?' It is 
definitely allowed."

So the answer is clearly one can daven early on the second night 
(Friday night).

BTW, let me add the following that occurred to me. According to those 
poskim who are concerned about Temimos, do they also require that 
women wait to light candles on the first night of Shavuous until 
after Tzeis? Should not Temimos apply to lighting candles also, if 
one is to be consistent?

I have never heard of such a thing, and all of the calenders that I 
have seen give the usual 18 minutes before Shkia for candle lighting 
for the first night of Shavuous.

Yitzchok Levine 
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..The Klausenberger Rebbe, zt'l, in Divrei Yatziv (O.C., No. 226) writes
that the reason we are stringent is not because it does not complete the 49
days of the omer, but rather because it appears as if we have not completed
the full 49 days of the omer! He adduces this reading also from the wording
of the Shulchan Aruch HaRav (the first Rebbe of Chabad).
It is interesting to note that Rav Chaim Berlin (the son of the Netziv and
the Chief Rabbi of Moscow from 1865), in Koveitz Shaarei Torah, Volume 8
(9:68), has an entirely different reading of this Taz. He writes that the
Taz is not dealing with any special aspect of Shavuos. Rather, he explains,
just as during all other days of the omer the counting must be perfect,
without the internal contradiction of having to count it on a different day,
the same is true with the 49th day: the omer may not be counted on a day the
latter part of which is shared with Shavuos.
The Tzitz Eliezer (Volume 13, No. 59), however, rejects Rav Chaim Berlin's
interesting rereading of the Taz and maintains that the idea of "b'etzem
ha'yom ha'zeh" makes this halachah unique to Shavuos.
Another issue relates to the second day of Shavuos. There is an enactment to
keep two days of yom tov in Chutz LaAretz (on account of sefeika d'yoma-an
uncertainty in the day that rosh chodesh was declared). Can we daven early
on the second night (Friday night), or do we have to wait until the time the
stars come, just as we do on the first night of Shavuos?...
http://matzav.com/shavuos-counting-temimos/

...note from a friend of mine (R Akiva Fleisher)

A Yeshiva student once approached MVHRHG"R Yaakov Kamenecki zt'l and told
him that although he stayed up through the night of Shovuos and learned
until the morning, he felt he actually lost quantity and quality in his
Torah learning. 
Towards the end of the night his mind was far from alert and he was so tired
that he slept a few extra hours over the next few days until he was back to
himself. He therefore raised the question if it was worthwhile to stay up
until the morning of Shovuos.

MVHRHG"R Yaakov Kamenecki zt'l responded that he should still do so in the
future. He explained that the intention of staying up all night is not to
cram in extra learning. It is obvious that most people would lose out some
Torah learning similar to the experience of this Yeshiva student. 
The intention of staying up all night and learning is to demonstrate an
unbridled love for Torah study on the day of the giving of the Torah. The
merit of this act is a "seguloh" for Hashem's blessing of opportunity to
learn Torah and do mitzvos with a minimum of external disturbances.

mordechai cohen

http://www.scribd.com/doc/15880040/-70-

At 07:40 AM 5/31/2009, M Cohen wrote:
>MVHRHG"R Yaakov Kamenecki zt'l responded that he should still do so in the
>future. He explained that the intention of staying up all night is not to
>cram in extra learning. It is obvious that most people would lose out some
>Torah learning similar to the experience of this Yeshiva student.
>The intention of staying up all night and learning is to demonstrate an
>unbridled love for Torah study on the day of the giving of the Torah. The
>merit of this act is a "seguloh" for Hashem's blessing of opportunity to
>learn Torah and do mitzvos with a minimum of external disturbances.
>
>mordechai cohen

Someone told me that Reb Moshe and other gedolim (whom he did not 
name) did not stay up all night learning. I am pretty sure that Rav 
A. Miller also did not stay up all night learning. He went to sleep 
at his regular bedtime, around 11 PM.

This person claimed that these gedolim felt that it was more 
important for them to keep their regular sedorim, than to stay up all 
night and interrupt their regular learning.

YL


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> HB:? why would chazal waive a rabbinical prohibition
> (muktzeh) to alleviate the pain of an animal, while at the same time we
> are  told that we can save an a?y on shabbas only because of ?eiva? 
> (enmity)?*

One of the big issues regarding an a"y is whether or not they are in fact
ovdei avodah zara and hence chayav misa.  If you were talking about a bone
fide ger toshav - ie somebody who had accepted upon themselves to keep the
sheva mitzvos benei noach, that is something different.  However, regarding
a bone fide ovdei avodah zara, you may need concepts of aiva even during the
week, don't lets talk about shabbas (see eg Shulchan Aruch Yoreh Deah siman
158 si'if 1).

 
> Can we apply the following kal vechomer:

Well specifically on your kal v'chomer I quote the footnote in (Rav Ovadiah
Yosef's) Yachave Daat chelek 5 siman 64 as follows:

"It is true that in the Shut HaChavot Yair siman 191 he writes that by a
person is not shayach the din of taar baalei chaim and we do not learn this
by means of a kal v'chomer from the law of unloading a burden that the Torah
has compassion on the animal because of tzar baalei chaim d'orita, and if so
ko she ken one should be concerned for the tzar of a person because there is
not in this any proof, because an animal lacks intelligence and reasoning
power but a person brings to it intelligence etc see there. However in the
teshuva of the Rashba chelek 1 (siman 252) he proves that even a person is
within the din of loading and unloading from that which is said in Baba
Metzia 30b about the story of Rabbi Yishmael b'rabbi Yosi that he met this
person that he had a burden [a parcel of wood] which he had taken off and he
asked him load me etc and it [the gemora] objects there that Rabbi Yishmael
b'Rabbi Yosi was old and it was not according to his honour, and it did not
ask "but there is no loading and unloading by a person" that rather indeed
it is taught also by a person. (and see further there in siman 256) see
there.  And this is the language of the Rambam in Sefer Hamitzvot siman 203
that Hashem commanded to put on the burden on an animal "or on a person"
when he is alone after he has taken it off and like he has commanded to take
it off so he has commanded to put it on like it is written hkum takum imo
and it says in the mechilta this is loading see there.  And so is written in
the Sefer Hachinuch (mitzvah 541) see there.  And see in the Sma (siman 272
s'k 13) that he writes that the reason of the Rambam that he writes because
of tzar yisroel even though it is not recalled in any place is because the
Rambam deduces that the tzar of yisroel is not less that the tzar of baalei
chaim of an animal and it is a kol sheken. (And this is a response to that
which is written in the kneset hagedola choshen mishpat siman 272 and the
hagaot haTur oit 1) and from the language of the Rambam that he writes that
one who wounds an animal of his friend etc he proves that there is no din of
loading and unloading except in an animal and not in a person.  Because a
person is a bar dat and he would not burden himself with a burden heavier
that is appropriate for him.  And this is the opinion of the rav who asked
the question in the teshuva of the Rashba siman 252 and 256.  But the Rashba
goes at length and proves that this din is shayach also to a person.  And in
truth the story of Rabbi Yishmoel b'rabbi Yosi proves like his words.  If
so, it is surprising the he did not see the words of the Rambam in sefer
hamitzvot that also by a person is shayach the din of loading and unloading.
And it is already seen that the gaon rabbi Ya'akov Algazi in the book
shaarit Ya'akov (daf 10b) disputes the HaChavot Yair from the teshuva of the
Rashba that he proves the opposite from the story of Rabbi Yishmoel b'rabbi
Yosi. See there.  And so writes the gaon Rabbi Yehuda Ashkenazi in the sefer
Machne Yehuda on Choshen Mishpat (siman 272) that he disputes the Hachavot
Yair from the teshuva of the Rashba. That by a person is not shayach the din
of loading and unloading and he adds the words of the Sma.  And further he
brings the words of the Rambam in Sefer Hamitzvot that there he writes
explicitly that his mitzvah is shayach also for a person. And we learn the
stam from the mefurash. See there.   And it mustn't be denied that in the
teshuva of the Radvaz chelek 2  (siman 728)  he agrees to the opinion of the
Rav who asked the question in the teshuva of the Rashba, that by a person it
is not shayach the din of loading and unloading, see there.   But in the
mechilta of  Rabbi Shimon bar Yochai parshat mishpatim brings atzov tazov
"imo" to include a burden on his shoulders. And from this it is clear there
there is a din of unloading by a person. And so is proved in Chazon
Yechezkel (perek 2 to Baba Metzia halacha 12) see there.  And Maran Hachida
in Birchei Yosef Yoreh Deah siman 372 s"k 2) who questions on the words of
the Hachavot Yair and brings also what is written in the tosphot Rabbanu
Peretz (in Baba Kama 54b) that d'rabbanan we are noheg the din of loading
and unloading in a person and he brings the words of the Radvaz and he
writes that even according to his words the matter is not so clear behold
that which he writes there that because a person has intelligence he will
not burden himself with a burden more than is appropriate for him, because
if so, when this reason is not shayach the Radvaz would agree that also by a
person there is the din of tzaar balai chayim d'orita. (and see further in
his book other matters daf 95b).  And further I saw what is stated at length
in the book Dovar M'sharim (in drash 2 l'nisuin daf 18 "ak "v'ahala").  And
see further in the book Torat Hamayim (maarechet 90 oit 2), and in the book
Shevet shel Mi, and b'kuntrus Ya'akov Lachak (siman 4) where there is more."


>  if to prevent an
> animal from suffering that is not mechuyav on any mitzvos then for sure we
> should be able to save a life of a ben adam, who is chayav 7 mitzovs and
> who was/is created in Hashem?s image, by violating the shabbas??
> [either midoraisa (a"y), or midirabonnon (muktzeh - animal) or? both...]

I am not quite sure what you are saying here.  But you should know that
specifically on that din regarding the permission to put down cushions based
on tzar balaai chaim as brought in Shulchan Aruch Orech Chaim siman 305
si'if 19 - that the Magen Avraham there brings in the name of the Rambam
that while one is permitted to put down cushions, even though that violates
the d'rabbanan of mevataling a prepared kli (the cushions), one is not
permitted to bring that animal up out of the water with one's hands, even if
the cushions fail to work and the animal will die, despite the fact that
such an action too only involves a d'rabbanan, that of the mukzta of the
animal - and even though tzar ba'alei chaim is d'orisa and the mutkza of an
animal is only d'rabbanan, we do not compare this gezera of the chachamim
with that gezara.  And so poskens the Aruch Hashuchan.  However while the
Mishna Brura brings (siman 305 si'if katan 70) this Magen Avraham, he also
brings that the ER brings that there are poskim who hold that if putting
down the cushions does not work one is permitted to bring up the animal with
one's hands.

So certainly according to the Magen Avraham, you cannot necessarily
generalise beyond the cushions case and the other specific cases we have.  

It is however possible [this is CL here] that while the Magen Avraham holds
that tzar baalei chaim is d'orita (as he says explicitly), since he is
basing his prohibition on bringing up the animal with one's hands on the
Rambam, and the Gra at least holds that the Rambam in fact holds that tzar
ba'alei chaim is d'rabbanan (see the Gra on Choshen Mishpat siman 272 si'if
katan 11) - so perhaps you can argue that this is why the Rambam at least
does not allow bringing up of the animal with one's hands, and that, if we
do hold that tzar ba'alei chaim is d'orita, then one could, contrary to the
Magen Avraham, rule against the Rambam and like the poskim referred to in
the Mishna Brura, allow the bringing up the animal with one's hands, and
perhaps this is the reasoning of such poskim, although I have not seen this
inside (or anywhere, this is just my speculation). Note also that others
specifically disagree with the Gra  and hold that indeed the Rambam poskens
like the opinion in the gemora that tzaar baalei chaim is d'orisa (see the
nosei kellim on Choshen Mishpat siman 272:8).  You should also for
completeness note that the Rambam's take on loading and unloading an animal
(perek 13 of hilchot rotzeach halacha 1 and 9) is that one is required min
haTorah to load or unload the animal where the animal and burden belongs to
a Yisroel, but where the animals belongs to an a"y and so does the burden,
there is no mitzvah at all except because of eiva. However if the animal
belongs to the a"y but the burden belongs to the Yisroel he is obligated
because of the tzar of the Yisroel.

So perhaps if we indeed hold, as we do appear to hold, that tzar baalei
chaim is d'orisa, then maybe one could more generally push aside d'rabbanans
on shabbas - but it does mean going against the Magen Avraham, and without
seeing inside the other poskim referred to in the Mishna Brura, one does not
know if this is in fact a general heter vis a vis d'rabbanans.  And, if we
held so, we could perhaps apply this to a person, based on the teshuva of
the Rashba - but I would have thought only so long as you were not dealing
with a person who could be considered to be within the category of ain
ma'alin v'ain moridin - which tends to be the issue that aiva often deals
with.  I don't quite see where you get to allowing d'orisas even with this
logic, however.  

But doing a little bit of speculating myself - I do wonder whether the fact
that a ger toshav is included at least somewhat in the dinim of shabbas min
hatorah, as is darshened from the pasuk (at the very least amira to a ger
toshav would seem to be an issur d'orisa according to the Beis Yosef),
might not include them sufficiently in the dinim of shabbas so that we can
apply the "violate shabbas so they can keep other shabboses" halacha.  And
coupled with the obligation to sustain them (l'chayoto, which is also a
d'orisa), might perhaps be sufficient for them to be included in the pikuach
nefesh rules vis a vis shabbas - even absent eiva.

Of course, this probably leads you into - do you have gerei toshav or quasi
gerei toshav today question - and in fact makes it more interesting, because
perhaps there are some interesting shabbas implications - as in, are there
problems with the way so much of the State of Israel runs on shabbas by way
of non Jewish labour?!  Just a thought.

> hb

Shavuah tov

Chana



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