Avodah Mailing List

Volume 05 : Number 053

Tuesday, May 30 2000

• Re: Heter Mechirah
• Re: Heter Mechirah
• Re: Heter Mechirah
• Re: (Fwd) Re: misayea
• Re: Sanhedrin
• Re: Sanhedrin
• Re: Heter Mechirah
• Re: Techilaso be'fshia
• Rashi question
• Re: Avodah V5 #51
• Re: Heter Mechirah
• critique of rabbanim
• Responsa by Rav Ya'akov Ari'el Shalit"a

The tabu dates from Ottoman times.

Yosef Gavriel Bechhofer
http://www.aishdas.org/baistefila    ygb@aishdas.org


----- Original Message -----
From: Carl and Adina Sherer <sherer@actcom.co.il>
To: Yosef Gavriel and Shoshanah M. Bechhofer <sbechhof@casbah.acns.nwu.edu>;
<areivim@aishdas.org>
Sent: Saturday, May 27, 2000 5:16 PM
Subject: Re: Heter Mechirah


> Now that I think about it, why are you classifying the "not inscribed
> in the 'tabu'" as being the major problem? The Netziv held the heter
> mechira was invalid long before there was any such thing as tabu.
>
> -- Carl
>
>
> Please daven and learn for a Refuah Shleima for our son,
> Baruch Yosef ben Adina Batya among the sick of Israel.
> Thank you very much.
>
> Carl and Adina Sherer
> mailto:sherer@actcom.co.il
>

I must make a mecha'ah for discussing the Heter
Mechirah and the shitah of the Rambam WITHOUT quoting
Reb Chaim even once.  You could get kicked out of some
yeshivos for doing that.

R. Chaim, as quoted by his father in Beis HaLevi
3:1:4, explains that according to the Rambam KEDUSHAS
EY is mide'oraisa but the CHIYUV of shevi'is is (and
was throughout the time of the second Beis Hamikdash)
only miderabbanan.  The kinyan of a goy works to be
mafkia the source of the chiyuv and not the chiyuv
itself.  Since the source of shevi'is is the kedushas
EY which is de'oraisa and the kinyan of a goy only
works on a derabbanan it cannot be mafkia shevi'is. 
See the entire teshuvah of the Beis Halevi 3:1.

For an update on the Brisker position see R. Menachem
Genack's Gan Shoshanim pp. 137-141.  I'm pretty sure
his article was printed in one of the early Mesorah
journals also.

Gil Student

__________________________________________________
Do You Yahoo!?
Kick off your party with Yahoo! Invites.
http://invites.yahoo.com/

On 27 May 00, at 22:05, Yosef Gavriel and Shoshanah M. Bechhofer wrote:

> The tabu dates from Ottoman times.

You may be right. I'm still not convinced that was the most 
important factor. 

In Shmittas Karko'os Perek 10 S'K 6 Note 11, R. Zvi Cohen brings 
from the Chazon Ish in Sanhedrin 35 and in Shviis 27:7 at the end 
of s"v v'im kein, three reasons why the sale to a goy has no effect:

1. Because it's sold by a shaliach and ain sh'liach li'dvar aveira.
2. Because, as you note, it was not registered in tabu, a problem 
which AFAIK has been rectified.
3. Because no one takes it seriously (unlike mechiras chametz 
where we have an um'dana that in order to avoid the issur of ba'al 
yeraeh and ba'al yimotzei, a person has gmiras daas to sell).

In Shviis Siman Yud Ois Vav s"v v'Esrogin, the Chazon Ish writes 
that if a person sells his own field to a goy, even though he is oiver 
on the issur of lo s'choneim nevertheless the mechira is chal. R. 
Cohen brings something similar from the Kisvei Kehillos Yaakov 
Chelek Alef Soif Siman Chaf Heh, where he says as to the tabu 
that although it is not m'akeiv between two Jews, it is m'akeiv 
between a Jew and a goy.

The Netziv in Ha'Amek Davar learns from "v'ha'Aretz lo simocher 
l'tzmisus" etc. that one cannot sell his fields to a goy for Shmitta 
and Yovel. He also learns from "geula titnu la'aretz" that one has a 
mitzva to be goel fields from nochrim so that shmitta and yovel will 
be kept in those fields, but he says that only applies where all of 
the land is in Jewish hands and only a part has been sold to a goy 
to work during Shviis.

Based on the part brought in Shmittas Karko'os (and this is a 
tshuva that really should be seen inside) the Netziv in Meishiv 
Davar 2:56 writes that the heter mechira violates the issur of selling 
land in Eretz Yisrael to a goy, which he says is an issur d'oraysa 
(based upon RCL's exchange with me a couple of weeks ago, R. 
Herzog would hold otherwise at least with respect to the local 
Arabs of his time, and R. Kook would hold otherwise, at least with 
respect to the local Arabs of his time for the limited purposes of the 
heter mechira).

The Chazon Ish in Shviis Siman 24 Ois Alef holds similarly to the 
Netziv.

In conclusion, while registration in the tabu was definitely one of 
the factors that led to the rejection of the heter mechira, it is one of 
five factors (the fact that the heter is done through a shaliach, the 
fact that there is no gmirus da'as on the part of those who own the 
land, lo s'choniem and v'ha'aretz lo simocheir li'tzmisus) involved. I 
don't see your basis for being kovea that the lack of registration in 
the tabu was the most important factor involved for the osrim. If it 
was, we might need to rethink whether the fact that the heter 
mechira is now registered in tabu changes the situation.

-- Carl


Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

Carl and Adina Sherer
mailto:sherer@actcom.co.il

On 25 May 00, at 18:45, Carl M. Sherer wrote:

> From:           	Joelirich@aol.com
> Date sent:      	Thu, 25 May 2000 10:26:01 EDT
> Subject:        	Re: misayea
> To:             	Avodah - High Level Torah Discussion Group <avodah@aishdas.org>
> Send reply to:  	avodah@aishdas.org
> 
> Does anyone know of any Shut dealing with purchasing property that is known 
> to be stolen? 

R. Zvi Shpitz deals with this in Mishpetei HaTorah 2:25. He 
classifies it as mesayea and does not mention lifnei iver. He says 
that anyone who is mesayea a ganav is machzik y'dei ovrei aveira 
and causing the ganav to steal again.

He also applies the din of purchasing stolen goods to purchasing 
items from the tax and customs authorities in Israel. 

-- Carl


Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

Carl and Adina Sherer
mailto:sherer@actcom.co.il

David Glasner wrote to answer my question of what is required to start up
the Sanhedrin:

> Actually the Dor Revi'i wrote that our own davening shows that the
restoration
of the Sanhedrin is not contingent on the arrival of the Messiah since
the blessing of hashiva shofteinu precedes the blessing of et zemah David.
?The same reasoning shows that the ingathering of the diaspora is also not
contingent on the arrival of the Messiah. On the other hand the reasoning
does not prove that the return of the diaspora is a prerequisite for the
reconstitution of the Sanhedrin. That seems only to require the
reinstitution
of formal semiha. But that requires a much more demanding requirement, the
agreement of all the
sages of Israel to select one of their number as the leader upon whom they
would collectively confer semiha who then in turn would be authorized to
confer
semiha on his colleagues. A serious movement to reestablish a Sanhedrin was
actually attempted in, I think, the 16th century, but was unsuccessful
because
there were some holdout rabbis who refused to cooperate with the effort.

Thank you for the reply.  Following Dor Revi'i's analysis, it is also
possible to see Birkat HaShanim as part of the Geula process - before
Kibbutz Galuyot, we need to have an economy in E.Y..  If we had to guess
which stage of Geulah we're in, it would be somewhere between "Kabetz
Nidachenu" and "Hashiva Shofteinu".  For Kibbutz Galuyot, we had rallies and
Y'mei Tefillah.  HaShem sent a million Jews out of Russia (of which I happen
to be one).  What do we need to do in order to impress HaShem with our
readiness for the next step?  Is it enough that we realize the depth of the
current problem with the judicial system?  Do we need to hold rallies also?

What will it take for there to be agreement among the current Chachamim that
we should renew S'micha?  (The previous attempt, iInm, was at the time of
the Ariza"l, and the Mechaber was the recipient of the S'micha).

-Kira

In a message dated 5/28/00 8:23:24 AM US Central Standard Time, 
kira@sirote.net writes:

<<  What do we need to do in order to impress HaShem with our
 readiness for the next step?  Is it enough that we realize the depth of the
 current problem with the judicial system?  Do we need to hold rallies also?
  >>

I'm curious. What sort of Sanhedrin do you envision? The sages of Israel give 
smicha to one of their own, who in turn gives smicha back to his colleagues. 
Then what? Do the sages then, with the help of HaShem, replace the courts? 
Must they not also replace the Knesset, as the legislature can override much 
of what the Israeli Supreme Court is permitted to decide? How do you see all 
of this coming about? What about those Israelis who might feel uncomfortable 
at giving such power to religious sages? Do you see any role for democratic 
expression here?

David Finch

From: Carl and Adina Sherer <sherer@actcom.co.il>
> In Shmittas Karko'os Perek 10 S'K 6 Note 11, R. Zvi Cohen brings
> from the Chazon Ish in Sanhedrin 35 and in Shviis 27:7 at the end
> of s"v v'im kein, three reasons why the sale to a goy has no effect:

> 1. Because it's sold by a shaliach and ain sh'liach li'dvar aveira.
> 2. Because, as you note, it was not registered in tabu, a problem
> which AFAIK has been rectified.
> 3. Because no one takes it seriously (unlike mechiras chametz
> where we have an um'dana that in order to avoid the issur of ba'al
> yeraeh and ba'al yimotzei, a person has gmiras daas to sell).

I always understood #2 & #3 as linked.

It may be true that since #2 is not a problem, #3 is not, or it may just be
that the tabu has become meaningless.

Of course, this will not resolve Lo Sechoneim, but as the CI notes, though
one is oveir the aveira, the mechira should still be chal.

Yosef Gavriel Bechhofer
http://www.aishdas.org/baistefila    ygb@aishdas.org

From: <C1A1Brown@aol.com>
> I don't understand what you mean. Forget Tos - the gemara says that that
> if you put bread in the oven b'mazid and then remember what you did before
> it starts baking you are permitted to take it out - the original post said
> this was assur. If you put the bread in b'shogeg and then remember that you
> are about to violate Shabbos, that parallels the Mishna on 102. of techilaso
> b'shogeg v'sofo b'mazid -nothing to do with ones.

See Tosafos in Shabbos 4a d.h. Kodem. That is the source that the SE is
discussing. Tos. there explains the hava amina.

Yosef Gavriel Bechhofer
http://www.aishdas.org/baistefila    ygb@aishdas.org

	Rashi on Bamidbar 1:49 says that HKB"H saw that there would be
a gezeira on those older than 20 to die in the midbar, so he had the Leviim
counted miben chodesh since they did not participate in the egel.

	It appears from Rashi that the "fatal" factor is being counted
from 20. If they would not be counted from 20 (as reward for not participating
in the egel), this would save them. Why is the count from age 20 operative
and not the fact that they were not part of the egel? The nashim were saved
from the gezera, because they didn't participate in the meraglim, not because
they were not nimnos from age 20? I am confused.

Gershon
gershon.dubin@juno.com
 

>>>>Ideally s/he should be a shomer chinam (shouldn't be
doing it al m'nas le'kabel schar).<<

Ruach haChaim on Avos 1:3 writes that the ideal is al menas l'kabel schar -
to draw Hashem's shefa to the world and reap its benefits, but most of us
aren't on the madreiga to do avodah that way so we settle for shelo al menas
l'kabel pras. An interesting twist. <<

R' Chaim Yaacov Goldvicht (prior Rosh Yeshiva of KBY) had a similar vort, in
which he distinguishes between "al m'nas" (iff in mathematical terms) and
"k'dei" (good).

Meyer

On 28 May 00, at 6:04, Yosef Gavriel and Shoshanah M. Bechhofer wrote:
> From: Carl and Adina Sherer <sherer@actcom.co.il>
>> In Shmittas Karko'os Perek 10 S'K 6 Note 11, R. Zvi Cohen brings
>> from the Chazon Ish in Sanhedrin 35 and in Shviis 27:7 at the end of
>> s"v v'im kein, three reasons why the sale to a goy has no effect:

>> 1. Because it's sold by a shaliach and ain sh'liach li'dvar aveira.
>> 2. Because, as you note, it was not registered in tabu, a problem
>> which AFAIK has been rectified. 3. Because no one takes it seriously
>> (unlike mechiras chametz where we have an um'dana that in order to
>> avoid the issur of ba'al yeraeh and ba'al yimotzei, a person has
>> gmiras daas to sell).

> I always understood #2 & #3 as linked.

I can't be sure (because I haven't seen the Steipler inside) but based on
what's brought in R. Cohen's sefer, I think he is mechalek between two
different things - the heter mechira where the entire country is sold,
which he says is no good in any event because of #3 ("d'vadai ilu haysa
m'chira amisis mamash hayu borerim yoiser lishmor shviis mi'limkor kol Eretz
Yisrael") and a sale by a yachid (where he says continuing the previous
sentence "aval b'yachid ha'mocher ain umdena kol kach") where although he
violates the halacha, it is only no good because of #2, and if the sale is
recorded in tabu it would be valid (albeit assur to do).

> It may be true that since #2 is not a problem, #3 is not, or it may
> just be that the tabu has become meaningless.

I think that there is no nafkus with respect to the sale of the entire 
country whether or not it is recorded in tabu. The CI, the Steipler, 
and before them the Netziv, would hold that it does not make a 
difference because there is an anan sahadei that if people really 
thought it was chal they would never do it. So we come back to 
number 3. But with respect to an individual, there is a nafka mina if 
it is recorded in tabu or not.

> Of course, this will not resolve Lo Sechoneim, but as the CI notes,
> though one is oveir the aveira, the mechira should still be chal.

With respect to an individual selling, yes, but not with respect to 
the Klal.

-- Carl

Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

Carl and Adina Sherer
mailto:sherer@actcom.co.il

RYGB writes
> On the Areivim list yesteday I made this point somewhat tongue in cheek,
> but I believe it correct: There is an inconsistency inherent in a
> perspectiive that allows, even encourages, critique of Rabbonim (or
> Gedolim) for their methodology and statements in one arena or area, but
> no others.

Unfortunately this seems to be done by everyone. As mentioned by others
certain groups give hechserim for shemitta in yerushalayim based on the
opinions of Chazon Ish even though this is against minhag yerushalayim.

Many customs in Jerusalem are of rather recent vintage (under 100 years).
This is one of the few minhagim that goes back to the time of the argument
of Mabit and Beit Yosef over shemitta with regard to land of gentiles.

The same people who rely on Chazon Ish against minhag Yerushalayim in
Jerusalem itself would be very upset if one has a wedding in Jerusalem with
a full band even though that custom is relatively new and was started only
in the times of Rav Sonnenfeld.

I am not sure what areas RYGB was referring to. However, it is common for
people to separate between a gadol's psak in terms of halacha and the gadol's
haskafa. As a trivial example a hasid can accept minhag haGra in terms of
how to daven without accepting the Gras opinions of hassidut.

kol tuv,
Eli Turkel

Following the discussions on Areivim and Avodah, I posed 4 questions
to Rav Ariel.  They are based on the various questions raised during
the discussions plus some posed to me in private e-mail.  I notified
the people involved that I would be passing on the questions to Rav
Ariel.  I have also recieved Rav Ari'el's written permission to
translate and publish the responsa.  Any mistakes in translation are
mine.  To receive the original hebrew by fax or attachment, contact me
privately.

First -- the questions:

To:
Rav Ya'akov Ari'el Shalit"a
Ramat Gan

    Re:        Kashrut and Rabbanut Hashgacha in Eretz Yisrael

During a multi-participant discussion between rabbis and religious
jews from Chutz La'aretz and Yisrael, the following questions arose:

Suppose (for the purpose of these questions) that I am a rabbi of a
community in Chutz La'aretz:

(1)  I heard a lecture delivered by rabbanim from Yisrael on the
difficulties in overseeing and implementing the keeping of Hafrashat
Terumot and Ma'aserot in companies and markets that are under Kashrut
Hashgacha of the Rabbanut.   I left with the impression taht there is
not sufficient attention (HaK'Pada) on Hafrashat Terumot & Ma'aserot
under the Hashgacha of the Rabbanut of Israel.

My conclusion:  Neither I nor people who care about Kashrut can rely
on the Rabbanut in this matter, and therefore neither I nor those who
follow my pskia will eat products under Hashgacha of the Chief
Rabbanut of Israel.

(2) I heard from local Mashgichim, during a visit in Israel, that
restaurant and factory owners cause Mashgichim belonging to the
rabbanut a lot of trouble, so that they themselves (i.e. the
Mashgichim) won't eat at the places where they Mashgiach on the
Kashrut.

My conclusion:  Neither I nor my people can eat at restaurants under
Rabbanut Hashgacha.

(3)  I heard from a relative that I can't eat at a certain hotel (5
stars, Kashrut Mehadrin of the Rabbanut) as it is known that the
Mashgiach "bothered" the owners, and therefore they bought him a free
pass to a video store so he can watch videos and not "bother" them
anymore.

My conclusion:  Neither I nor my people can eat at hotels under
Hashgacha of the Rabbanut, even Mehadrin.

(4) The Kula of Gelatin is not accepted by any rabbi who isn't Noge'ah
BaDavar.  It is famous that Rav Chaim Ozer  was lied to with regards
to the method of preparing gelatin, and his Heiter should not be
relied on in this matter.

My conclusion is that neither I nor my people can eat Elite candies
nor Tenuva products that contain gelatin based on this kula.

================================

These were the questions I posed.  They are indeed more serious than
some I've heard during the discussions, but they are mild compared to
others I've heard elsewhere over the years.

Here is the Responsa of Rav Ya'akov Ari'el, Chief Rabbi of Ramat Gan
and an expereinced Rav Mashgiah connected to the Chief Rabbanut of
Israel:

... The style of what was said is to be regretted.  One should be
Makpid
(careful) of what a person let's out of one's mouth as much as one
should be careful of what one puts into one's mouth.
The term "I heard" which isn't checked or based on evidence is not
appropriate for true Talmidei Chachamim.

And to the body of what was said:
(a) There is a natural tension between the Mashgiach and the owner of
the business.  Just as there was always between the butcher and the
Rav.  This is a very human phenomenon.  But, nevertheless,  a good
Mashgiach does an honest and worthy job and when there is a problem
(Takala) he fixes it and if it is necessary, the rabbis are called in
and even the Kashrut Certificate can be removed.

(b) In every place where there is Hashgacha, Terumot and Ma'aserot are
taken Ka'Halacha.

(c)  If there is a Mashgiach who isn't suited to the position, he
should be removed, but the failure of one does not mean that the
entire system is a failure.  The vast majority of the Mashgichim do an
honest job (Osim Melachtam Ne'emana).

(d) The things said with regard to the Gelatin are libelous (Alila
Mamash), and Hotz'at Shem Ra on Gedolim of Yisrael.  Not only Rav
Chaim Ozer permitted Gelatin, also Rav Frank and Rav Avramsky, and in
the Tzitz Eliezer and more and more.  Even those who forbid it do not
see it as forbidden Mi'Doratia).

Whoever wants to add (Le'hader) does not eat gelatin, but one
shouldn't slander the majority of the Tzibbur (community) who rely on
the greatest of poskim, they too are eating Kosher.

        BeBirkat HaTorah, Ya'akov Ariel

=============

Shoshana L. Boublil


All work that is done, should be done out of love.
Then it ceases to be difficult, or boring, or embarrassing.
Even a cup or a plate can be washed with devotion until they shine,
out of aspiration for  perfection and completion.
Rav A.Y. HaCohen Kook

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


[ Distributed to the Avodah mailing list, digested version.                   ]
[ To post: mail to avodah@aishdas.org                                         ]
[ For back issues: mail "get avodah-digest vXX.nYYY" to majordomo@aishdas.org ]
[ or, the archive can be found at http://www.aishdas.org/avodah/              ]
[ For general requests: mail the word "help" to majordomo@aishdas.org         ]