Avodah Mailing List

Volume 08 : Number 099

Sunday, January 27 2002

• Re:Re: Din Torah
• Din Torah
• Re: Re: Din Torah
• Yam Suf
• Fwd: Rabbi Mordecahi Willig - Two Women, Two Songs
• Re: chalav hacompanies
• Cheating (was: Chalav hacompanies)
• re: Chalav hacompanies
• Re: Chalav hacompanies
• Re: Chalav hacompanies
• Re: Achdus
• YhS vs. TE
• Re: Halachic methodology - Minhag {more}

"Carl and Adina Sherer" <sherer@actcom.co.il> writes:
:The check cleared but Shimon did not receive the money. Someone else
:apparently got a hold of the check and endorsed it. The insurance agent
:never got the check either.

My question still stands: whose responsibility is it if the money never
gets there? What is lehavdil the civil law on this?

Gershon
gershon.dubin@juno.com

RCS asked about liability for lost cheques. I believe that rav Bleich
may have published on the subject, but his book is not at arm's
reach. However, I remember when we discussed cheques and lo yigosh,
that there is a difference between American and Israeli cheques, as
the conditions under which they are drawn are different. For instance,
in America there is no penalty for putting a stop order, so that it is
argued that a cheque does not halakhikally constitute payment (hence
is not a debt and therefore does not fall under lo yigosh, assuming
the original payment was for a sale or a pruzbulized debt). In Israel,
a stop payment order is extreme, and penalized, so that it is considered
a real debt, (hence does fall under the prohibition of lo yigosh).

Thus, the Israeli cheque is considered a payment for the earlier debt,
an gives rise to a new debt. In your din Torah, that may mean that
Reuven has a claim he paid. However, that would only work if the party
that cashed the chque was indeed designated by you as the recipient
(I believe this is the "din eved kna'ani in mass. Kidushin), otherwise
it is as if Shim'on never received anything.

OTOH, if this is considered payment, then there is a debt that arose and
can be claimed in BD. (or so I believe ... details of the case permitting)

What I don't understand is whether the insurance company has the cheque,
and if so, why it doen't either exchange the cheque for a well written
one, or cashes it in and pay Reuven?

Git Shabbes,
Arie Folger

On Fri, Jan 25, 2002 at 02:38:04PM +0000, Gershon Dubin wrote:
: My question still stands: whose responsibility is it if the money never
: gets there? What is lehavdil the civil law on this?

Speaking of dina demalchusa...

I would think that a check is a shetar with the implied consent to comply
to secular law in its disposition (or whatever is the correct legalese).

-mi

-- 
Micha Berger                 "And you shall love H' your G-d with your whole
micha@aishdas.org            heart, with your entire soul, with all you own."
http://www.aishdas.org       Love is not two who look at each other,
Fax: (413) 403-9905          It is two who look in the same direction.

Howard Schild writes:
>Checking his references in the back, he is gong acccording
>to Chizkuni 14:22 which says they went in a half circle coming in and
>going out on the same side. Does anyone else say this? a midrash?
>Or is this a unique opinion? The Artscroll Rishonim book says the Chizkuni
>liked to quote "less popular" views.

I'm afraid the Chizkuni deserves an apology from someone, because he
prooves it from Chumash Bamidbar 33:6 &8. And that's also what Toisfos
says in Erchin 15a SV Kisheim.

kol tuv
yosef stern

[Posted under the first submitter's name. -mi]

Very nice Dvar Torah on the complementary roles of Miriam and Devorah
Steve Brizel
Zeliglaw@aol.com


Two Women, Two Songs
Rabbi Mordechai Willig

On Shabbos Shira we read the songs of two prophetesses, Miriam and
Devorah. These great leaders were not merely giants in their times;
they are paradigms for two different paths of avodas Hashem for Jewish
women of all generations.

Miriam personified the incredible devotion of Jewish women to the bearing
and raising of children, ensuring the continuity of our people. She is
first introduced to us as Pu=92ah (Shmos 1:15), who coos to the child
and soothes crying babies (Rashi). Later, Miriam convinces her father to
remarry her mother despite Pharoh=92s decree to kill all newborn males
(Rashi 2:1). As a result, all of the Israelite men followed this example,
and many more children were born (Sotah 12a).

Indeed, the redemption from Egypt was a reward to the righteous
women. They, like Miriam, persuaded their exhausted and despondent
husbands to have more children (Sotah 11b, Rashi 38:8). Logic may have
been on the side of the men, and Miriam=92s father Amram, the Gadol
Hador. But the intuition, courage, and emotional strength of the women,
led by Miriam herself, ultimately prevailed.

Miriam practiced what she preached. She married Kalev and bore him a
son, Chur (Rashi 17:10). In sum, Miriam was the prototype of a mother
in Israel, enabling many others to have large families (1:20) despite
threats, decrees, and privation.

Devorah, the subject of the Haftorah of Shabbos Shira, represents a
totally different model of avodas Hashem. She was a judge (Shoftim
4:4), working outside the home in the public sphere. We read nothing
about her children or family, but rather of her issuing military orders
(ibid.4:6,7,14).

The songs of these illustrious personalities reflect their respective
roles. Miriam sang with a tambourine, with music that inspired all the
women to dance (15:20). She sang with heart and emotion, as befits a
midwife who witnessed the miracle of birth countless times, and who now
saw the open miracle of krias Yam Suf.

Her text was brief and simple, "Sing to Hashem for He is exalted
above the arrogant, having hurled horse with its rider into the sea"
(Shmos 15:21). Apparently, this text was repeated over and over again,
in an emotional outpouring of song and dance, for women only.

Devorah, on the other hand, composed a lengthy and complex poem
(5:2-31). It was probably read, and not sung musically, for men and
women, together with Barak Ben Avinoam (5:1). As a cerebral leader,
a judge and military strategist, this was the appropriate shira for
her. A brilliant, poetic depiction, replete with nuance and imagery,
was Devorah=92s way of praising Hashem.

Even the introductions to these two songs indicate the differences
between the authors. Miriram=92s tambourine evoked the joy necessary to
experience the Divine Presence. The women whom she led overcame the pain
of the bearing and raising of large families and felt divine inspiration
through music (Kli Yakar 15:20).

These same women, noted for righteousness for convincing their husbands
to have more children, are righteous for another reason as well. They
had faith that Hashem would perform miracles for them, and, therefore,
took tambourines from Egypt (Rashi 15:20). Indeed, it was the very same
faith that enabled them to raise families, even when the logic of their
husbands and Amram considered it futile and unwise.

Devorah begins her song "I, to Hashem Shall I sing" (5:3). Miriam
needs no such introduction. Her role is clearly l=92sheim shomayim,
for the sake of Heaven. However, a public figure like Devorah might
be suspected of ulterior motives, such as the pursuit of glory or
egalitarianism. Therefore, Devorah must preface her shira by saying that
her song, and her life=92s work, are lashem.

Today, many more women work out of the home than in past generations. This
provides an opportunity for kiddush Hashem. People observe Jewish
womens=92 honesty and politeness, their speech and dress which reflect
Torah,not the pervasive vulgarity of modern society, and are moved to
love Hashem (Yoma 86a).

Many righteous women struggle to juggle the roles of Devorah and Miriam
simultaneously. Some face scorn in a workplace which emphasizes a modern
version of self-fulfillment to the exclusion of the Torah=92s emphasis on
bearing and raising children. Fortunately, many experts in the secular
world are now recognizing and publicizing the critical role of mothers
and fathers in raising their own children, even at the expense of career
advancement (U.S. News, Jan. 2002).

Many other equally righteous women devote the best years of their lives
entirely to their families, in the spirit of Miriam, It is=20= the duty
of Torah society to encourage this unifocal devotion, which has enabled
Am Yisrael to flourish through the generations. Especially when careers
and opportunities are available, the traditional role of wife and mother
must be strengthened.

The lives and songs of Miriam and Devorah demonstrated that there are
many ways for women to perform avodas Hashem =96 l=92sheim shomayim. May
the righteous women of today, as their ancestresses in Egypt, enable Am
Yisrael to be rewarded with the geula shleima.

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_________________________________________________
the HTML version of this dvar Torah can be found at:
http://www.torahweb.org/torah/2002/parsha/rwil_bshalach.html

R SBA wrote
> >>>... RMF in volume 8 of IM [YD 5] writes thus (in reference to ChC):
> "...ibra d'ikka taamim lehokel ...hu RAK B'SHAAS HADCHAK..."<<<
> EVERYBODY who has since responded has ignored this psak of RMF.
> Why? 

First, this tshuvah was written in 5728, which is *before* the tshuvah
in IM YD 3:16, which was written in 5735 and clearly states that ChC is
muttar meikar hadin. So you can't argue that Rav Moshe changed his mind.

In fact, it's possible that Rav Moshe himself chose not to print this
tshuvah because it might be misinterpreted. It was printed posthumously,
and Rav Rappaport has extensive comments to reconcile it with the other
tshuvos.

Last, this tshuvah was written to address the paticular circumstance
of people in Toronto who used to drink chalav yisrael and then stopped
drinking it, causing the price of chalav yisrael to increase.

Kol tuv,
Moshe

Rabbi Daniel Eidensohn wrote <<< This is similar to a psak that Reb Moshe
supposedly gave [never could confirm whether it is true] concerning
cheating on tests. He supposedly said it is permitted under the following
conditions 1) It doesn't harm any other students i.e., test is not graded
on curve 2) It can not be in an area of competence that ignorance could
be harmful i.e., brain surgery or engineering where ignorance is a
catastrophe 3) it is only permitted if it has no impact on ones midos.
>>>

If Rav Moshe ever did give such a p'sak, surely it was meant as a
HUMOROUS way of saying "Cheating is always assur".

How can one ever possibly meet criterion #3? How can one engage in
geneivas daas without it impacting on one's midos? Am I missing something
here?

I also question criterion #1: Even if this test is not graded on a curve,
high grades for this test may suggest to the teacher that the classes
need to be more challenging, and this will harm these students
themselves, or students of future classes.

Akiva Miller

From: "Daniel Eidensohn" <yadmoshe@012.net.il>
>>>Commercial milk is chalav yisroel ...<<<<

Wouldn't the correct description (leshitas hamatirim) be: "...is kosher"
or "as kosher [b'shaas had'chak] as CY?
How can "cholov shecholvo akum" become CY!?

>>>...though not the best type of
chalav yisroel but one can readily utilize it sha'as hadchak e.g.,
when supervised milk is inconvenient, too expense, not available,
tastes bad. However not when it impinges upon ones core values of
yiddishkeit. Thus chinuch which needs to emphasize that one makes
sacrifices for avodas hashem and one should not look for easy ways,<<<

So in BP or Monsey where competitively priced, fresh CY is available on
every block, hakol modim that - even according to RMF - CY should be
use exclusively?

And mah dinom of nasherai - eg ice cream, chocolate bars etc??

[Email #2. -mi]

From: kennethgmiller@juno.com
>>>R' Shlomo Abeles writes  ... see Oruch Hashulchon YD 115. ... In sif
6 he brings a shocking story about people who were nichshol [via CA]
in treifos and bosor becholov.

Oh, yes! One of my favorite stories! I would like to...discuss it
objectively.

. The balaboss confessed before me and cried out, "The words of the
chachamim are so great!" The truth is, I have a kabalah that every
gezeira of the chachamim, in addition to its explicit reason, it also
has many implicit reasons which were not revealed. He who listens will
carry a bracha from HaShem, and will be repaid both here and hereafter.

....the story ...says nothing about Cholov haCompanies. It doesn't really
say too much about Cholov Yisroel either. But it speaks volumes about
being a naive customer who eats unlabeled products. This story is about
people who are not only uncaring about which kashrus standards to rely
on, but more than that, they don't even look at the ingredients list.<<<

And I would suggest that the OH brings the story not so much to prove
the issur (he doesn't need proof - leshitoso it is a gezero) of CA but
rather to show 'kamo gedola divrei chachomim" - even if their gezeros
sometimes don't make sense logically, there is a deeper and higher meaning
to their decisions. (Remember the gemoro bringing the stories of Mayim
Rishonin/eating chazir and Mayim achromin/ causing murder, good stories,
but those are NOT the reasons for MR and MA...)

>>>to me, the point of the Aruch Hashulchan is that one should at
least make a minimal effort to ask one of the staff, and verify that it
really is orange juice, and not some cheap orange-colored drink. If one
presumes it to be pure orange juice, isn't that EXACTLY what the men in
the story did?<<<

Sure. But the point of the OH's story is that the issur on CA is a gezero
and that we don't trifle with gezeros Chazal. Period.

>>>>I often wonder whether Cholov Akum was a specific piece of legislation
that suggested, debated, and passed by the Sanhedrin? Or, possibly, it
was not at all different than the practical observation by a kashrus
organization that a certain ingredient (which used to be acceptable
without supervision) now needs a hechsher because manufacturing methods
have changed? And maybe that is what the whole machlokes about Cholov
HaCompanies is about? <<<<

I would advise you and anyone who may have concerns about this matter
 to get hold of a copy of the kuntres Kavonas Halev [on
Inyonei CA] by the late Krasna Rov z'l RH Lichtenstein, which I understand
brings and explains all the shittos and viewpoints. I would be surprised
if after your queries and sfeikos remain unresolved.

[BTW someone has brought to my attention, that RDZ Hoffman z'l, rav of
the Adass Yisroel Kehilla in Berlin pre-war, writes in Melamed Leho'il -
YD s. 36 - that only 'kalei hadaas' were meikil in CA in Germany..]

[email #3. -mi]

From: Micha Berger <micha@aishdas.org> [on Areivim]
>>>> Kashrus warnings. E.g. "We cook with ChC". For that matter, even
someone who consumes ChC in one country may not rely on the inspection
controls in another!<<<

(I have had an off list discussion with a chaver who has meanwhile stayed
out of the public eye). And that is, that CA consumers worldwide
 [as in the US], always use the excuse "RMF's hetter!".

The ChC hetter is that the FDA checks the milk to ensure that it is 100%
cows milk.
However, a milk mashgiach here informs me that he has firm information
from the authorities that no such check is made in Australia.
Similar, I have been told, is the case in UK (where treif milk was found
to have been added to cows milk].

So what is the hetter for CA in these countries??

Also, shouldn't all tshuvos in the IM be clearly marked saying that "before
relying on this hetter, check with the local authorities"?

Isn't it a clear case of "Chachomim hizharu bedivreichem"?

[Um'inyan leinyan.
Here in Melbourne some years ago, a 'talmid' of RMF, was appointed as
rabbi of a large shul. He positively made 'choyzek' of the concept of CY!
Ad kdei kach, that upon hearing that even those who were not too makpid
on kashrus a whole year (and not only on CY), when it
came to Pesach purchased Pesachdigeh milk - which was supervised,
 declared that this is nonsense and plain milk is perfectly OK -
even for Pesach. The community was quite shocked. After all, especially
regarding Pesach, if one has certain chumras for this YT,
why tell people to disregard them?]

SBA

>> Commercial milk is chalav yisroel though not the best type of
>> chalav yisroel but one can readily utilize it sha'as hadchak e.g.,
>> when supervised milk is inconvenient, too expense, not available,
>> tastes bad. However not when it impinges upon ones core values of
>> yiddishkeit.

> How does one define "However not when it impinges upon ones core values
> of yiddishkeit"?

>How can one ever possibly meet criterion #3? How can one engage in
>geneivas daas without it impacting on one's midos? Am I missing something
>here?

Agreeing basically with R' Akiva Miller, I think the response to both
comments is simply this. Aside from knowledge of facts, intelligence to
analyze and generalize - we also are equipped with the sense of shame
and embarrassment when there is a disparity between what is and what
should be.

If a person feels ashamed or embarrassed by not keeping a certain level
of observance - that is an indication that he is violating his core
values. If one has been careful to use only chalav yisroel milk for many
years and then one day decided that since company milk is also kosher
why not save some money - I think he would be embarrassed or ashamed to
have this become publicized in his family or community. Thus he shouldn't
do it. If I know that wearing a hat is not required by law and one day
decide not to wear a hat because it is an inconvenience or too expensive
- I would feel uncomfortable explaining the sudden shift because it is
not only a halachic issue but involves my core values and what other's
perceive my core values to be. On the other hand if something really
doesn't matter to him personally such as cutting the upper or lower
challah first - then change is not problematic. Of course there are
others for whom such an action is a core value. In addition there are
cases where a particular course of action is dictated because of a need
to create or develop core values. That is why Reb Moshe was makpid that
educational institutions should spend the extra money of supervised milk.

In sum, part of avodas hashem is something called integrity which goes
beyond the issue of whether I am honest with money.

                                                        Daniel Eidensohn

On Mon, Jan 28, 2002 at 12:12:18AM +1100, SBA wrote:
: The ChC hetter is that the FDA checks the milk to ensure that it is 100%
: cows milk.
: However, a milk mashgiach here informs me that he has firm information
: from the authorities that no such check is made in Australia.
: Similar, I have been told, is the case in UK (where treif milk was found
: to have been added to cows milk].

According to their web site, your information about the metzius in the UK
is incorrect. (I would therefore also double-check what you were told
about AU).

See: <http://www.defra.gov.uk/foodrin/foodfrm.htm>

The site also discusses inspection of dairies. A quick once-over
found <http://www.defra.gov.uk/farm/agendtwo/strategy/bulletin/bulletn3.pdf>
in which they announce a recent reduction of dairy inspection charges.

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
Fax: (413) 403-9905             - R' Yekusiel Halberstam of Klausenberg zt"l

[Forwarded from Areivim. -mi]
<<  why not think about what YOU have done for achdus today?
    We could start by saying tehillim for those Jews injured in the latest
    pigua.  >>

As I drove to shul this morning,I head the bsoros raos on the radio. I 
resolved to try to incorpprate the following kavanos in Shemoneh Esreh:

1) Avos- Hashem promised EY to the Avos.
2) Givuros - HaShem is an active partner in all of Maaseh Breshis
3) Kedusha- May we live to be Mkadesh Hashem
4) Daas- may we have daas to understand this worls
5) Teshuvah- may we all have an increased power of teshuvah from our
   matzav
6) Geulah- may we all be redeemed from our daily problems
7) Cholim- may we discover the cure for dreaded diseases
8) seasonal changes- may we all have sufficient rain and water without
   fear of drouts and floods
9) Gathering of the exiles-may we all move to EY without the eternal
   threat of antiSemitism
10) Justice- may our Batei Dinim be the source of all justice , not just
    Orach Chaim.
11) Heretics- may we emulate Shmuel HaKatan in our fighting the
    deviationists of all colors
12) Tzadikim - may we learn the Torah of all Gdolim, especially those
    of different hashkafas than we are accustomed to
13) Building of Jerusalem- try to help those who stand on the physical
    and spiritual ramparts of Jerusalem
14) bringing Moshiach- may we yearn for Moshiach without deifying a
   deceased person by mistake
15) Tefilah as Karban- may HaShem accept all of our tefilos in the place
    of a communal sacrifice
16) Modim- may we learn to thank HaShem for all of the small miracles
and technological wonders that we don't think about
17) Shalom- may we all live a life of goodness, chesed at all times .

This is a small sketch of one member's kavanos.

Steve Brizel
Zeliglaw@aol.com 

My mind is obviously slipping away (40th birthday fast approaching -
10 Adar!).

RMF neglected the major dissimilarity between TE and Nidon Didan.

Chazal b'ru'ach kodshom (although this does not require, perhaps RhK)
knew to be masmich ta'anis to simcha and lead up to the Simcha of Purim
with the Teshuva of TE (and, a Religious Zionist would perhaps take
this as ample precedent for Yom Ha'Zikaron preceding Yom Ha'Atzma'ut)
- and this, too would be mosif nofech in the ShL quoted by my esteemed
opponent: TE is a minhag she'heen'heegu Chazal b'ruach kodshom as an
essential preliminary, linked and bound to Purim, which, of course,
has inherent event-date significance.

All this, of course, hoht gohrnisht tzu tohn miht a freestanding day
bereft of event-date significance.

QED II.

Kol Tuv,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

In a message dated 1/24/02 11:53:55am EST, sjtait@barak-online.net writes:
> The GRA?! Can you give such an example . . . ?

Miknhag Asheknaz hakadmon all suport the following:
Baruch Hashem during Ma'ariv
Oseh Hashalom at the end of the Amidah during 10 dyas of Repentance
Baruch at Hashem Hamkedash es shimcho (or shmo) barrabim
Not saying morid hatal during the summer
Daily Duchaning
....

IOW nearly EVERY change the Gra advocated in Nusach was against Rema
and in favor of Sephardic practice. The Assumptoin that this is
Kabblistically influenced is an educated guess - but since the Ba'a
hatanya agreed on every one of those it's a good guess

I've posted this before a few times.

The issues of Minhag Ashkenaz going against texts comes up at several
junctures in history

the Bavli is everyone's favorite Talmud so when the minhag contradicts
it is on the defensive. Tosafos comes to the rescue

The Rambam is everyone's first favorite code. The Hagaho Maimoniyos
notes where Ashkneaz differs

The Shulchan Aruch is next. There the Rema is quite clear to present
his agenda of preserving Minhag Ashkenaz where it differs

The next main challenge - AISI - was during the 18th Century from Hassidim
and other mekuballim within Ashkenaz

This has been a constant back and forth.  People who are carried away with
Talmud Bavli
Rambam
or
Zohar 

Will not easily realize where the Ashkenazic Masorah is rooted.
The single best source is the Maharil, but he is not quite exhaustive
either. The Rema is a close second.

The GRA is a total enigma to me in that in many places he defends the
minhag but in others he overturns the liturgy

[Email #2. -mi]

In a message dated 1/24/02 11:48:32am EST, David Riceman
dr@insight.att.com writes:
> You might want to reread his tshuva about tfillin on Hol HaMoed.  Seemed
> pretty pro-minhag to me (admittedly it's  been a while since I looked at 
> it).

more details please.

There are many places where I agree with Reshal - saying the first paragraph 
of sham during Birchos Hashachar - instead of none or all 3 - is a case in 
point.

But I do not think Meharshal had much use for Minhag as a proof of a Halachah 
when it didn't fit neatly into the Gmara.

It is obvious to me that Tosafos, Maharil, and Rema felt differently. 

re: thse I am a bit fuzzy
 Trumas Hadeshen, Rosh and Tur

EG:
Tur in 46 favors Minhag Ashkenaz re: haNosein Laya'ef Ko'ach
but 
rejects Minhag Ashkenaz in 68 regarding Yotzros

<--big shrug of shoulders-->

[Email #3 -mi]

In a message dated 1/22/02 10:19:56pm EST, jjbaker@panix.com writes:
> I don't know how you missed it, but the Bach says the same thing quite
> definitively on that place in the Tur - that it must have come from an
> alternate nusach in their gemaras

Thanks for the update!

But remember the Taz  - Bach's son-in-law - did not come up with that one 

Also remember that acocrdgin to some authoritities somen Gaonic emendations 
to Bavli crept into the text further muddying the waters on this issue.

If this is reall so, what tot h eBach was an alternaive nusach might have 
been a Takkanos Gaonim to the Taz.

IMHO, it is likely that neither happened literally, just that the minhag 
itself was proof positive that SOMETHING took place during that era that 
triggered the bracha to be nisphashet during the era of the Rishonim.  
Something that was accepted despite the conventions of not adding brachos in 
general.  I truly doubt a formal takkanah or an alternative nusach was at 
play.  Rather I suspect an informal Takkanah or a nuance in the text that 
SUGGESTED the brachah.

For further reading see the Rosh in Brachos on "al Nkiyyus Yadayim."  
Assumption: al nkiyyus is the lashon of erchotz benikyon kappai and hence the 
REAL bracha SHOULD HAVE BEEN al nkiyyyus yadyaim.

This suggests that these brachos - in general - follow psukim in Tanach.  So 
does hanosein layef koach.  (zokeif keffufim, mattir assurim etc. do, too).  

[Email #4 -mi]

In a message dated 1/24/02 11:53:55am EST, sjtait@barak-online.net writes:
> but what
> where in the gemara does it say that a nusach b'racha can't be coined 
> later?
> That we can't change a bracha *already* coined I can find a m'kor, but that
> more can't be added? Isn't this an "invention" of the Rishonim? So couldn't
> the Achronim decide to pasken like "the Gaon" against the Rishonim?

re: matbai'a sheta'vu chachamim

The whole matter is very circular anyway

The gmara says Ravina and Rav Ashi are Sof hora'a... now could the gmara
have said Rambam, Rosh, Rif, or Gra? Of course not! Technically the
Gmara could ONLY go as far as the last amora anyway

Think about it: If the Mishna had said R. Yehudah Hanassi was sof hor'ah
would the Talmudim have acepted THAT?

And as we know the Gmara admits that Rav, sometimes Shmuel and R. Yochanan
are Tannaim and can argue with Tannaim.

Even many of US accept the Gra as a Rishon!

But there IS an accepted range of methodologies. The purpose of this
thread is to find some common denominators.

My points about Minhag are real simple:
since certain texts have emerged as the premeir texts in their class
E.G. Bavli, Rambam and Shulchan Aruch 
we TEND to forget the mitigating aspects
Minhag, Mimetics, Masorah
Tosafos, Haghoas Maimoniyos, Haghos Harema

I am only waking people up to the bigger picture. The trend has been to
oversimplify in favor of the texts and to ignore the conditions that
provide excpetions - conditions which are built into the process but
whose parameters get lost in the fine print.

anyone steeped in Seeing the Bavli through Rambam's eyes will have a
hard time "Getting" where Maharil is coming from.

And then aqgain if you went into the Breuer community, they cannot get
how anyone has the audacity to turn minhaggim around in favor of some
theoretical piece of lamdus that has not been around for at least a
few centuries. That's laregley because the Maharil and the Rema's shita
prevails there.

to further illustrate my point:

Look at ANY simple Ashkenazic siddur that is NOT yekke. In it you will
find the rules of Av Harachamim on Shabbos. It wil invariably be ONLY
the prevailing "minhag polin" version.

Now read vritually ANY yekke siddur. it will usualy have the minhag
Polin FIRST and the German minhag second {i.e ONLY on shabbos before
Shavuos and Tisha b'av}

Point? Yekkes are a minority and are forced to be aware of what is
general and what is specific. the larger "Polisher" community assumes
its way is the ONLY way and therefore other minhaggim are beta'us etc.
{l'havdil nearly Every American Jew knows a bit about Xtian holidays,
while the vast majority of Amerians are only rencetly getting a clue
about Jewish Holidays}.

Case #2: Breuer's does not say Avina Malkeinu on Ta'anis Tzibbur rather
ONLY on 10 days of Tshuva. I had a chavrusa who had a hard time getting
this one: He asked me: "how come Breuer's does NOT say it"? Kinda like
when did so-and-so stop beating its wife! He could NOT imagine that it
just might have been that some communities NEVER said it because their
minhag never had it to being with. He presumed mightily that they MUST
have all said it just like WE DO but stopped for a reason. It took me
over 20 minutes to get past this pre-supposition and I'll bet he still
does not really get it yet!

When you realize that we ALL bring our prejudices and pre-suppositions
into the fray, then you realize how many macholokissen all boild down
to just one or several premises.

So far I think I can point to 4 schools
1) Talmud only: e.g. Meharshal, maybe Rambam, Brisk AISI}
2) Talmud as interpreted by Poskim: e.g. Beis Yoseph
3) Talmud in tension with Minhaggim and/or other texts - such as Yershlami 
psikta, etc.: e.g. Maharil, Rema 
4) Talmud as modified by Zohar: e.g. Arizal, Hassidim, Edot Mizrach

So when Tosafos reads the Bavli - he cannot be massig that their local minhag 
is in conflict! so he goes off to give a teirutz., etc.

And I would bet that when the average Brisker read the Rambam and does nis 
lamuds he is not massig at all that the Ashkenazic school of Maharil etc. has 
a completely different paradigm to explain how we are noheig today that has 
nothing to do with reconciling the Rambam and the Bavli.  which is why I 
reccomend the Brikser derech for lamdus and not for hora'ah. 

The GRA on SA YD 265 understood this a bit when he rejected the reasoning of 
Tsoafos and Maharil w/o rejecting their conclusion of not being Sandek twice 
to one father.  The Gra realized that the lamdus was hsaky, but he also 
realized that the IMPSETUS was NOT the lamdus but the minhag evolved for 
other reasons - in this case the tzava'as R. Yehudah Hachassid.

Where the GRA did NOT get it was re: Mayyim Acharonim {MA}.  Tosafos was not 
being mevateil MA, he was defending - post facto - what was being done 
already.  The fact is that Tosafos's reason might be flawed, but his bottom 
line conclusion of how to be noheig was a fact of life in Ashkenaz. FWIW AhS 
tries to reconcile this a bit . IOW Tosafos is kinda like saying that 
Breuer's does not say Avinu Malkeinu on Fast Days.  That is a fact. Now 
Tsoafos's ta'am is perhaps not infallible, but his citation of the Halachah 
was considered normative.

As to how that can be when the Gmara has a Gzeira in place, that is BEH a 
subject of an upcoming post.   See the IM Orach Cahim (2) #100 re: stopming 
and clappiong on Shabbos and what R. Moshe says to rationalize Tosafos.

I have what I think is a simpler and more universal answer.

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

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