Avodah Mailing List

Volume 02 : Number 063

Friday, November 27 1998

• yad eved, mekach taus by ishus ben noach
• Havot Yair citation
• thanksgiving
• Re: thanksgiving
• mekach taus by ishus ben noach
• R' Yaakov'd pshat in Rambam
• Halacha l'Moshe:Sources
• Re: Avodah V2 #62
• Re: R' Yaakov'd pshat in Rambam
• Could the Rambam have made mistakes?
• Re: R' Yaakov'd pshat in Rambam
• responses to #62
• Futures
• Re: R' Yaakov'd pshat in Rambam
• Re: responses to #62
• Re: responses to #62

The Machne Ephrayim (Shluchin 11) compares yad poel with yad eved and cites BM
96 (ba'alav imo) - against the R' Akiva Eiger who obviously is mechalek
between them.  I found my kashe in a footnote in the M.A. (don't know who
wrote it) who writes the sevara of yad eved or yad poel wouldn't allow your
eved/poel to be meifer your wife's nedarim and is strictly a ba'alv imo/dinei
mamonos halacha.  In short, our little shakle v'tarya is found in that Machne
Ephrayim and footnote.  

>>>What I find needs Iyun here is to be Maamis this in Shitas Horan, when the
Raan holds that by Get the words are Maakeiv Doreisoh (Beis Shmuel 136).<<<

I'll save you some time - the Avnei Miluim (35:9 - I miscited) is writing acc.
to R"Y MiGash that the words are not meakev.  (Perhaps that's why Ran gives a
different hesber for the RY MiGash, ayen sham)

Again, on to better things!  Perhaps YGB can explain why there shouldn'y be
mekach taus by ishus of a ben Noach - Netziv (29:23) is mashma that Leah was
not mekusheshet till Ya;akov knew exactly who she was and agreed.

-Chaim B.

>More generally, as
>the Havot Yair shows in teshuva 198 (I think that's the right one), in case
>after case cited by the Rambam as mi-pi ha-Sh'mua or Halachah l'Moshe
>mi-Sinai, there are all kinds of disputes about various details of the
>interpretations or the halachot and many instances in which basic
>interpretations or halachot were forgotten. 

Teshuva 192 and in Mar Keshisha.   
The Maharitz Hayos calls this teshuva one of the three most important works
on history/philosophy of halakhah after Rav Sherira Gaon's letter and the
Rambam's hakdamah to Mishnah.

Moish

A heard a joke today from a friend which is worth repeating: From where do
we have a remez from the Torah to the mitzva of thanksgiving? Because the
pasuk says "hodu la Hashem ki tov ki lolam chosdo" Hodu-give thanks with a
turkey. But seriously what has the olam heard concerning the issue of
chukas hagoyim and the like regarding thanksgiving-specifically eating
turkey, stuffing etc (I'm not talking about football). It would be
interesting to see the practices of the list as it represents a wide
spectrum of Judaism from all over the world.  Personally, my family has a
"thanksgiving" dinner , but we also consider it a birthday party as my
birthday as well as my father's birthday is Nov 30. (this is not getting
into the issue of whether or not a birthday party is any better, because
it might also be chukas hagoyim) I have to admit that I'm not sure what
I'd do myself (probably not have a turkey dinner) but G-d willing bli eyen
hara, I'll be able to goto my
parents house for many years  to come (to celebrate my b-day as well as my
father's) so I won't need to decide, but it
might make an interesting and timely discussion.
Elie Ginsparg

I think it all depends on your understanding of the issur of chukat haakum. I
can provide a number of mareh mkomot if you like but it seems to turn on
whether you view the issur as being blanket, based on idolatrous origins, or
where the origin of the practice is unclear.  With regard to Thanksgiving
itself see igrot moshe(2:13) where he says "ein issur mdina, aval baal nefesh
yesh lahem lhachmir"  (uh oh-here we go again with that baal nefesh debate:-))
The Rav(see nefesh harav 230)saw no issur nor reportedly did his father.
Our extended family on both sides joins for a seudat hodaah with all the
trimmings on THanksgiving to thank hashem for allowing the existence of a
society that allows us to worship him freely in a manner relatively unheard of
in the (at least recent)history of our galut. May we soon need to celebrate
only our own yamim tovim in our holy land with all our holy brothers and
sisters through our holy tora.
I think in a macro sense the Thanksgiving issue also turns on how we view our
relations with our nonJewish neighbors-I think this may have already been
discussed on this list but if not it would be an interesting thread.

Kol Tuv on this one of 365 days a year where we give thanks
Joel Rich

On Wed, 25 Nov 1998 C1A1Brown@aol.com wrote:

> Again, on to better things!  Perhaps YGB can explain why there shouldn'y
> be mekach taus by ishus of a ben Noach - Netziv (29:23) is mashma that
> Leah was not mekusheshet till Ya;akov knew exactly who she was and
> agreed. 
> 

Certainly.

See the Yerushalmi Kiddushin 1:1 ( I haven't gotten there yet, RZN
Goldberg quotes it in an essay in "Zichton Menachem") where there is a
machlokes Shmuel & R"E if Ishus Ben Noach even requires Kavanna (Shmuel
holds not). Even if it does, it is no different than Chuppa (IMHO), where
Kavanna is likely required, but where Mekach Ta'us - just like Tnai,
Kiddushin (Bavli - 5b? - R' Chaim somewhere, forget where, I think,
though, in "Sefer"), does not apply as it is not an acquistion, but a
state of bonding. Mekach Ta'us applies only in acquisitions - via
transactions. See also the Rambam at the beginning of Hil. Ishus.

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

>>>For, if the Rambam could make a mistake in Hil. Yesodei HaTorah, why might
he not also make a mistake in Hil. Shabbos?<<<

Does that mean the Rishonim who disagreed and thought the Rambam was mistaken
in some Halachos held the whole Yad to be suspect?  I don't even begin to
understand this line of reasoning - it would be akin to saying if Einstein
ever got a math problem wrong the entire theory of relativity is suspect.  

>>> If so, such matters could not have been written, but were given over from
mouth to ear, so how could the Rambam wrrite them in his work and publicize
them to all, especially as the Rambam himself (4:10) brings this rule not to
expound thes matters in public - so how can he cite them in his work?<<<

Great kashe - asked in derashos haran derush 1, whi is cholek on rambam. 

>>>"We are forced to say that that which the Rambam gave us here in these
chapters is neither Ma'aseh Merkava or Ma'aseh Bereishis<<<

Rambam writes "The explanation of these things in ch. 3 and 4 is called
ma'aseh Beraishis.  And the Chachamin commanded these topics not be taught
publicly..." (YEsodei HaTorah 4:10)  Acc to R Ya'akov (1) it is not literally
ma'aseh beraishis, and (2) therefore there is no issur in writing it - I can't
see how that fits the Rambam's words?! As to how  the Rambam could address
these topics in violation of Chazal, why not read the intro. to Moreh where
the Rambam himself asks and answers this question?  

>>>The Rambam wrote these chapters only as a Preface to the Yad Ha'Chazaka,<<<

Evidence?  

>>>and one, therefore, cannot compare a mistake in these halachos to one in
Hil. Shabbos<<<

One could argue in fact that a philosophical mistake in hashkafa is far more
dangerous  than a mistake in Hil. Shabbos, but I admit the point can be
debated.

Of course, I await the criticism that I haven't shown proper respect to R'
Ya'akov.  I'll just say in advance that I think the words of Achronim deserve
to be weighed against the Rishonim they interpret and be considered
accordingly.  

-Chaim B.

Moshe Koppel wrote:

>>the Havot Yair shows in teshuva 198 (I think that's the right one),in case
>>after case cited by the Rambam as mi-pi ha-Sh'mua or Halachah l'Moshe
>>mi-Sinai,

>Teshuva 192 and in Mar Keshisha.
>The Maharitz Hayos calls this teshuva one of the three most important works
>on history/philosophy of halakhah after Rav Sherira Gaon's letter and the
>Rambam's hakdamah to Mishnah.

I would add the Netziv's Introductions to the Sheiltos. He has a very
intelligent discussion of the understandings of halacha l'Moshe,
gemiri, B'emes etc including a discussion of the Chavas Yair and the
Rambam - as well as the dynamics of halacha development.  The
introduction of Rav Dovid Karliner to Sheilas Dovid  is also an
important discussion of the nature of halacha including how to
understand the nature of halacha l'Moshe

                            Daniel Eidensohn

Date: Tue,  25 Nov 98 
From: Bens22@juno.com
Subject: Thread on Davar Shelo Ba'ah Leolam

The Mechaber writes (CM 60:6) Lehalachah  that even though one can not be
Makneh a DSBL he certainly can be Meshabaid a DSBL.  The reason being
that to be Makneh the Kinyan can not take hold as there is no object for
it to be "Chal" on.  But a "Shiybud" takes hold in the person and
therefore can be "Chal".

There is a discussion as to whether or not a person can indeed be Makneh
a DSBL if the seller has the object available to buy.  The Semah holds
that he can (CM 209:23).  The Shach is not convinced.  This is discussed
further in Rabbi Akiva Aiger (BM Daf 62:b and I believe in Teshuvos).  In
the case of stock options, first of all if the seller owns the stock then
there is no DSBL.  But even if not, he certainly can get it so there is
then the opinion of the Senah.

I am wondering where the poster sees a problem of Ribis in stock option? 
Could you let me know?  I would see more of a problem in stock futures.

Ben  
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On Thu, 26 Nov 1998 C1A1Brown@aol.com asked many questions on R' Ya'akov's
approach. Some of the questions I think I might be able to answer, others
I have difficulty with myself. My point in citing R' Ya'akov, however, was
the satisfaction at remembering another source (apologies if someone
quoted it here previously, and I simply forgot) for the premise that not
everything in Mishne Torah = Torah.

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

Shoshanah M. & Yosef G. Bechhofer wrote:

>  for the premise that not
> everything in Mishne Torah = Torah.
> 
> YGB


"I am sure that if  the Rambam would have written his work Yad 
Hachazakah in conjunction with other scholars it would not have been met 
with anywhere near the criticism we find on his work.  Many of the 
critics questions are so strong and present such great difficulties that 
they cannot be answered convincingly without forced pilpul, far-fetched 
logic, or specious conjecturing on alternate texts, methods of thinking 
the Rambam himself rejected in many of his responsa, such as to the 
Chachmei Lunil.  Moreover, the Rambam admits in many of his letters that 
he was mistaken in certain rulings and bows to the objections of his 
critics, even at times ordering certain rulings changed.  He wasn't 
committed to upholding his words with forced logic as are many of the 
later commentators who came to his defense.  I believe the main reason 
for these discrepancies is the way in which the Rambam worked.  As he 
admits in the introduction to his book and many letters, he worked for 
ten full years closeted in the  solitary isolation of his room, not 
discussing his writings with his colleagues - designing and building the 
entire work on his own.  If, during the course of his work, he would 
have consulted other Talmudic Scholars, there is no doubt that they 
would have pointed out many of the questions that have been raised in 
the hundreds of years since the work's publication.  He obviously would 
have made many corrections before allowing the book to see the light of 
day, eliminating many of his errors from the very outset."

There are many who would put the person who makes such a statement about 
the Rambam in Cherem.  However, the preceding is a  quote from a 
translation of the "M'kor Baruch" by the author of the monumental work  
"Torah Temmimah": R. Baruch HaLevi Epstien, ZTL.  He was, also, the son 
of the author of the monumental work, the Aruch HaShulchan, by R. 
Yechiel Michel HaLevi Epstien. The quote is attributed by R. Baruch to 
his uncle, the Netziv. 

I quote this now in the hope that it will stimulate discussion about the 
question of the infallibility of the Rishonim.  R. Chaim Brisker's  
Magnum Opus seems to quintessentially refute the above statement by the 
Netziv. However, the very methods utilized by R. Chaim, seem to validate 
the criticisms raised above by the Netziv.

So, If the Rambam can be criticized by the gut analysis of the Netziv, 
then so, too, should we be able to criticize other Rishonim with the 
same type of gut analysis...  No?

HM

C1A1Brown@aol.com wrote:

> >>>and one, therefore, cannot compare a mistake in these halachos to one in
> Hil. Shabbos<<<
>
> One could argue in fact that a philosophical mistake in hashkafa is far more
> dangerous  than a mistake in Hil. Shabbos, but I admit the point can be
> debated.
>
> Of course, I await the criticism that I haven't shown proper respect to R'
> Ya'akov.  I'll just say in advance that I think the words of Achronim deserve
> to be weighed against the Rishonim they interpret and be considered
> accordingly.

This quote attributed to Rav Yaakov has received much criticism. He apparently was
willing to dismiss the Rambam's shita based entirely upon the fact that a man
landed on the Moon and then he asserted that eilu v'eilu applies to the words of
the Rishonim and that if one finds any error that it loses the status of eilu
v'eilu . All this is problematic. The more conventional approach would have been
to say that the Rambam's view that the moon is a living body has a deeper meaning
which is not rejectable merely because we see what appears to be a physical moon.
Asserting that the Rishonim were infallible i.e. that all aspects of their
positions must be correct creates many problems. Again it would normally be
asserted that certain aspects of the Rishon's position are inconsistent with
observable facts. The all or nothing approach is problematic. His description of
the Introduction of Mishna Torah as being simply philosophy and not Torah is
easier to defend but it is clearly not universally held. I think this a case of
gadol expressing an idea in a particular context and the publisher failing to
provide that context to the reader. It has been reported that Rav Yaakov was
severely shocked by the fact that a man landed on the moon.

In sum, this excerpt from Emes l'Yaakov is not the way a gadol typically expresses
himself on these issues - especially for publication.

                                               Daniel Eidensohn

For David Glasner and C. Maryles: see Rambam, sefer haMitzvos, Shoresh =
#2. As I understand it, "mipi hashmu'a" does not necessarily preclude =
possibility of machlokes in details of din or even in what the shmu'a is =
because of general forgetfulness (as in gemara chagiga, 2nd perek) or =
specific forgetfulness, following death of Moshe rabbeinu a"h.

For Y. Zirkind and YadMoshe: YZ quotes the following:
>   ( c ) Rambam:Drasha is only Rabbinic
>  The Rambam (Sefer HaMitzvos Shoresh II)  uses this Drasha to =
illustrate that not
>  everything that looks like a Doreissa is in fact a Doreissa.=20
NW sussests: See Rambam, sefer haMitzvos, Shoresh #2. The quoted comment =
is not precise: I understand Rambam to say that not every drasha or din =
derived therefrom is to be counted as mitzvah just because it is =
d'oreisa. Thus, a din can be d'oreisa, yet not a mitzvah to be counted. =
Query what effect this distinction has on aidus, sh'chita, tzeiruf =
l'davar sheb'kedusha?
To: YGB: who responded to a question of the validity of Ya'akov's =
marriage to Leah due to canceling effect of mekach taus by answering: =
"Mekach ta'us by Ishus Ben No'ach?"
We learn from that incident "malei sh'vu'a zos" that there is a week of =
sheva brochos;=20
Chizkuni writes that there were ten camels that accompanied Eliezer for =
the ten men they needed for Rivka's sheva brochos; finally, why do you =
phrase your rebuttal as "Ishus B.N.";=20
1) perhaps the question and the answer has to do with whether the din of =
mekach ta'us applies to *any* B.N. transaction, including birchas =
Yitzchak, or
2) perhaps there were no backsies in Padan Aram (i.e. there are many =
layers to "lo ya'aseh chain bimkomanu, etc."), or=20
3) perhaps in a place full of rama-us, what would be the point of =
cheating and lying if upon discovery it could be undone, or=20
4) perhaps "lo ya'aseh chain bimkomeinu" means that Ya'akov agreed to =
marry whoever was under the veil . . . .
--Noach Witty

On Thu, 26 Nov 1998, Ben Smith wrote:

> I am wondering where the poster sees a problem of Ribis in stock option? 
> Could you let me know?  I would see more of a problem in stock futures.
> 

THe problem is the issur d'rabbanan of buying and selling at discount for
hakdamas ma'os.

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

On Thu, 26 Nov 1998, Daniel Eidensohn wrote:

> The more conventional approach would have been to say that the Rambam's
> view that the moon is a living body has a deeper meaning which is not
> rejectable merely because we see what appears to be a physical moon. 

I actually prefer R' Ya'akov's approach, as I believe the Rambam himself
would have been readily prone to accept error in his work, if not in its
halachic sections, certainly in its scientific sections.

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

On Thu, 26 Nov 1998, Noah Witty wrote:

> We learn from that incident "malei sh'vu'a zos" that there is a week of
> sheva brochos; Chizkuni writes that there were ten camels that
> accompanied Eliezer for the ten men they needed for Rivka's sheva
> brochos

"Learn" is a strong word. I do not think Sheva Berachos is d'orysa. As an
asmachta, nicha. 

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

Noah Witty wrote:

> For Y. Zirkind and YadMoshe: YZ quotes the following:>   ( c )
> Rambam:Drasha is only Rabbinic
> >  The Rambam (Sefer HaMitzvos Shoresh II)  uses this Drasha to
> illustrate that not
> >  everything that looks like a Doreissa is in fact a Doreissa.NW
> sussests: See Rambam, sefer haMitzvos, Shoresh #2. The quoted comment
> is not precise: I understand Rambam to say that not every drasha or
> din derived therefrom is to be counted as mitzvah just because it is
> d'oreisa. Thus, a din can be d'oreisa, yet not a mitzvah to be
> counted. Query what effect this distinction has on aidus, sh'chita,
> tzeiruf l'davar sheb'kedusha?

The Rambam states in shoresh #2 " ...and not all that is found in the
Talmud which is based on the 13 midos is actually d'rabbon because there
are times when this is actually an explanation which was received from
Moshe Rabbeinu at Sinai..[therefore] .what is described by Chazal as
being from the Torah itself or that it is Doreissa  - it is proper to
count it as doreissa - but if they don't tell us [that which comes from
a drasha] is really doreissa  it is in fact *derabbonon* because there
is no [explicit] verse. [the failure to understand this principle] has
been the source of error and therefore we find that yiras chachomim is
counted as a positive mitzva when it is apparently based upon the
statement of R' Akiva that es HaShem comes to include talmidei
chachomim....".

In what sense is my description of the Rambam not precise? The Ramban
and others clearly take it to mean exactly what I said. The fact that
you want to understand it differently than what the Rambam says - to
resolve some difficulties - does not mean that the above reading and
understanding of the Rambam is not precise. You are in fact asserting
your drasha is pshat. That when the Rambam says he is talking about
doreissa and derabbonon he really means that he is differentiating
between doreissa which are one of the 613 mitzvos and those which are
not. While some commentaries make such an assertion it is not
universally accepted.  If it were universally agreed upon by the
Rishonim and achronim I would have no problem with your assertion that I
erred. Then it is similar to aiyen taches aiyen. The pshat of the
Rambam, however,  remains the plain meaning of his words and thus the
Ramban and others reject the Rambam as making an erroneous assertion.
You prefer to say the Rambam was not in error but rather all those
rishonim and achronim were wrong for misreading him.
Is the Rambam's blood redder than everybody else's?

                                                   Daniel Eidensohn


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Noah Witty wrote:
<BLOCKQUOTE TYPE=CITE><FONT COLOR="#000000"><FONT SIZE=-1>For Y. Zirkind
and YadMoshe: YZ quotes the following:>&nbsp;&nbsp; ( c ) Rambam:Drasha
is only Rabbinic</FONT></FONT>
<BR><FONT COLOR="#000000"><FONT SIZE=-1>>&nbsp; The Rambam (Sefer HaMitzvos
Shoresh II)&nbsp; uses this Drasha to illustrate that not</FONT></FONT>
<BR><FONT COLOR="#000000"><FONT SIZE=-1>>&nbsp; everything that looks like
a Doreissa is in fact a Doreissa.NW sussests: See Rambam, sefer haMitzvos,
Shoresh #2. The quoted comment is not precise: I understand Rambam to say
that not every drasha or din derived therefrom is to be counted as mitzvah
just because it is d'oreisa. Thus, a din can be d'oreisa, yet not a mitzvah
to be counted. Query what effect this distinction has on aidus, sh'chita,
tzeiruf l'davar sheb'kedusha?</FONT></FONT></BLOCKQUOTE>
The Rambam states in shoresh #2 " ...and not all that is found in the Talmud
which is based on the 13 midos is actually d'rabbon because there are times
when this is actually an explanation which was received from Moshe Rabbeinu
at Sinai..[therefore] .what is described by Chazal as being from the Torah
itself or that it is Doreissa&nbsp; - it is proper to count it as doreissa
- but if they don't tell us [that which comes from a drasha] is really
doreissa&nbsp; it is in fact *derabbonon* because there is no [explicit]
verse. [the failure to understand this principle] has been the source of
error and therefore we find that yiras chachomim is counted as a positive
mitzva when it is apparently based upon the statement of R' Akiva that
es HaShem comes to include talmidei chachomim....".
<P>In what sense is my description of the Rambam not precise? The Ramban
and others clearly take it to mean exactly what I said. The fact that you
want to understand it differently than what the Rambam says - to resolve
some difficulties - does not mean that the above reading and understanding
of the Rambam is not precise. You are in fact asserting&nbsp; your drasha
is pshat. That when the Rambam says he is talking about doreissa and derabbonon
he really means that he is differentiating between doreissa which are one
of the 613 mitzvos and those which are not. While some commentaries make
such an assertion it is not universally accepted.&nbsp; If it were universally
agreed upon by the Rishonim and achronim I would have no problem with your
assertion that I erred. Then it is similar to aiyen taches aiyen. The pshat
of the Rambam, however,&nbsp; remains the plain meaning of his words and
thus the Ramban and others reject the Rambam as making an erroneous assertion.
You prefer to say the Rambam was not in error but rather all those rishonim
and achronim were wrong for misreading him.
<BR>Is the Rambam's blood redder than everybody else's?
<P>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Daniel Eidensohn
<BR>&nbsp;
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