Avodah Mailing List

Volume 16 : Number 007

Thursday, October 20 2005

• Surcharge to pre-ordered Lulavim and Mehusar Amanah / Mi Shepara
• RE: Lulavim
• Hosoafos in Haazinu
• RE: statistics
• RE: Shofar on Shabbos
• Re: shofar on shabbos
• Date: Mon, 17 Oct 2005 13:36:59 -0500
• Re: Shofar on Shabbos
• RE: Shofar on Shabbos
• RE: shofar on shabbos
• RE: Shofar on Shabbos
• Re: shofar on shabbos
• Re: illegal succah
• Re: Ha'azinu Hosafos
• Re: Morbidity statistics for charedim in Jerusalem
• Re: first rashi al torah
• Re: shofar on shabbos

From: Mike Wiesenberg <torahmike@gmail.com>
> There have been reports of many lulav sellers adding a surcharge to
> their pre-ordered sets.

> Is this considered being Mechusar Amanah? Or does that not apply since
> the cost went up?

1) If the price rises between the order and the delivery, that is the
case of Trei Tarei, which is a Mahlokes Rishonim. Rema (HM 204:11)
cites both opinions and rules stringently, but see also Shach (ibid 5),
Aruch Hashulhan (ibid 11), Shevet Halevy (4:210) and Dinei Mammonos
(2:1:1:2 note 2).

2) If the buyer has already paid for the merchandise (in full or in part)
then there is a potential Mi Shepara. Trei Tarei does not mitigate Mi
Shepara. (Although the Tshovos Hasam Sofer HM 102 asserts that it does,
this is Tamuah, as it appears to contradict an explicit Gemara (BM 74b);
see Nahalas Tzvi (HM 207:3) and Erech Shai (HM 204:11) who are Masig
on Hasam Sofer, and see also Minhas Pitim (HM end of 204) who takes for
granted (without citing Hasam Sofer) that Mi Shepara applies even in a
case of Trei Tarei.)

3) The foregoing holds when the seller had the merchandise in his
possession at the time of the sale and the delivery was supposed to be
imminent, but the price nevertheless moved between the transaction and
the delivery. In such a case had there been a Kinyan there would be no
question that the seller would be locked in to the deal at the originally
agreed upon price; the discussion is when there was no Kinyan but only
Devarim (for Mehusar Amanah) or Maos (for Mi Shepara). If, however,
the seller did not own the merchandise but rather undertook (Hishayvus
Bekinyan) to obtain it and to supply it to the buyer at some future date,
then there is a discussion among the Poskim as to whether the seller can
renege on his commitment if the terms are no longer "appropriate" at the
time of delivery; see Panim Meiros (2:8) and Beis Efraim (HM end of 4),
cited in Pis'hei Teshuvah (HM 227:7 [on 227:9 in Shulhan Aruch]). The
Nahalas Tzvi (HM 227:9) discusses the case where the Hishayvus was
without a Kinyan (and the agreement was for future delivery) and so the
issue is once again Mi Shepara.

Good Yom Tov,
Yitzhak

On October 17, 2005 DovGoldie@cs.com wrote:
> There is a machlokes rishonim whether a change in market value (shaar) is
> considered a "matana mu-etes" or not. The tzad that it is seems to be based
> on the notion that market fluctuations are normal, and can be expected. If
> lulavim have never been held up in Egypt before, I don't know that it could
> be considered as such.

I would imagine not. Also, and I don't have a Choshen Mishpat in front of
me now but I think that the only time there would be a machlokes rishonim
is only post-sale not pre-sale. If everyone knows there is a surcharge
being added pre-sale, the mochrim have collectively been migaleh that
they are not giving a matana and thus the koneh never developed a smichas
daas such that the din of mechusar amanah could be chal.

Please note: The above is an off the cuff analysis. I reserve the
priveledge to change my mind upon further investigation :-)

Gut Yom Tov
Simcha Coffer

See the Mishneh Brura 428:14.  You can in fact make a hosafa after Shviyi

[We're drifting from topic. -mi]

> I've very much enjoyed the discussion surrounding Leonid Portnoy's above
> comment, but the original comment is not entirely correct. Modern
> technology has very little to do with the decline in mortality compared
> to previous generations. Most of the mortality decline can be attributed
> to improvements in diet and hygiene.
> Zackary Sholem Berger

I think more specifically it's due to the decline in infant mortality,
which means future improvements may be harder to come by bderech hateva

GT
Joel Rich

On October 16, 2005, Shaya Potter wrote:
> You sort of avoided my question. If the issue is that you might do
> something "bad" with the shofer on shabbos RH (whatever that "bad"
> thing is), couldn't the same issue apply to doing something with the
> shofer on YK as you'll be using it right after YK ends.

I didn't mean to avoid your question. I was simply being mikazer. I wrote
a longer explanation in my following e-mail to Cantor Wolberg. In short,
I mentioned that the probabilities of chilul Shabbos in the YK case are
basically nil whereas by RH, they are significant. Please see my email
to him for the long version of my response.

Good Yom Tov.
Simcha Coffer

"S & R Coffer" <rivkyc@sympatico.ca> wrote:
> Your recollection is faulty. The yoma arichta business was only
> permanently established after the Beis haMikdash was charev. Before that,
> most of the time RH was only one day in Israel (in places where they
> were close enough to the Sanhedrin to find out on that day). See Rosh
> Hashana daf 31: and Beitza daf 4:

Only in Yerushalayim.  The rest of EY always kept 2 days, because the
shluchim can't leave the techum of Y"m until after dark, by which time
the rest of the country has already begun celebrating the 2nd day.

>>It's not as if there was ever only a one-day Rosh Hashana,
>>and if it fell on Shabbos, they just didn't blow shofar that year.

> Well, I'll grant that the above was probably true 99 percent of the
> time but only because the sanhederin was generally stationed in the Bais
> haMikdash and the halachah is "ein shvus baMikdash" so they always blew
> in the Bais haMikdash. But what will you say during the time when the
> Sanhedrin was exiled to yavneh?

In Yavneh they blew on Shabbos.

-- 
Zev Sero
zev@sero.name

Simcha Coffer wrote in response to the following:
> but what it made me wonder is
> something else. If Yom Kippur falls on Shabbos, then why wasn't the
> tekia g'dola forbidden at the end because the baal tokia might forget
> and carry the shofar to shul on Shabbos in order to sound the tekia
> g'dola at the very end?

Per R. Coffer --

Once again, you are asking from a dissimilar case. The case of RH is
referring to millions of private citizens spread out across the entire
country, some of whom are am aratzim and due to the fact that they
don't know how to blow the shofar, they might take it to a baki. On YK,
there is no private chiyuv to hear tekias shofar and thus no one will
be carrying their shofaros from home to a baki to have them blow. Tekias
shofar after YK is only a minhag tzibur so if you happened to be in shul
after YK is over, you will hear a blast. Also, in view of the fact that
the baal-tokeah is blowing the shofar, he is probably a baki. We are
not choshesh bekeeim of carrying on Shabbos just am aratzim. Besides,
even if the baal-tokeah was an am haAretz, YK doesn't have nearly the
same statistical probability of chilul Shabbos as RH does (due to its
tzibbur centerd nature) and thus a gezeira was not necessary.

Actually, the Rosh Hashana prohibition is that the shofar will be taken to
a "chacham," so that the tokaya will be able to ask about the proper way
to do the tekiyot. On YK, there are no halachot for the tekiya gedola, so
even apart from the fact (as some have noted) that the blowing is after YK
such that the shofar could be brought to shul right before it was needed
(or it could be left in shul!), there was no basis for a similar gezairah.
Secondarily, there would be no need for a YK gezeirah to prevent carrying
the shofar to shul because, if you accept the premise that the shofar
blowing is post-YK, carrying the shofar to shul or whatever would be
subject to the usual prohibitions of hachana.

S.

Shalom L. Kohn

R' Simon Montagu wrote <<< The RITVA (to Rosh Hashanah 16a, see Be'er
ha'Golah of the MAHARAL, Be'er #1) states that when Chazal present an
Asmachta, it means that the Torah meant to suggest that it is fitting
to implement such a Halachah, but that it did not choose to make it
obligatory. The Torah empowered the Chachamim to enact it should the
need for it arise.. >>>

Does this mean that without the asmachta, the chachamim would *not*
have the power to enact it, even if the need arises?

Either I'm misunderstanding something, or *every* d'rabanan has an
asmachta backing it up (which I would believe if someone would say so).

Akiva Miller

On Mon, 2005-10-17 at 13:55 -0400, S & R Coffer wrote:
> On October 16, 2005, Shaya Potter wrote:
>> You sort of avoided my question. If the issue is that you might do
>> something "bad" with the shofer on shabbos RH (whatever that "bad"
>> thing is), couldn't the same issue apply to doing something with the
>> shofer on YK as you'll be using it right after YK ends.

> I didn't mean to avoid your question. I was simply being mikazer. I wrote
> a longer explanation in my following e-mail to Cantor Wolberg. In short,
> I mentioned that the probabilities of chilul Shabbos in the YK case are
> basically nil whereas by RH, they are significant. Please see my email
> to him for the long version of my response.

read, still don't buy it fully.

We blow the Shofer at the end of Neila, before any form of havdala is said
(some during Kaddish at the end, some after Kaddish at the end).

In fact, the Rav of the shul I was at for YK made an announcement (perhaps
incorrectly) that they were going to try to finish neilah by 7:15 (Which
was actually 42 minutes after shkiah), but that people shouldn't do any
Hachana for the next day (i.e. women who might leave right after neilah)
until 7:24 (the shul is weird and has havdala 51 minutes after Shikia,
don't know why).

Now, it wasn't an issue as neila went a little long and they finished it
after 7:24, but if it was earlier, how could they have blown the shofar?
Perhaps, the rav viewed 42 minutes as "ok", but the shul generally waits
until 51 minutes, so people shouldn't the melacha until after that, but to
blow earlier would be ok in terms of tircha d'tzibura. Don't really know.

On October 17, 2005 Zev Sero wrote:
> "S & R Coffer" <rivkyc@sympatico.ca> wrote:
>>                              The yoma arichta business was only
>> permanently established after the Beis haMikdash was charev. Before that,
>> most of the time RH was only one day in Israel ... . See Rosh
>> Hashana daf 31: and Beitza daf 4:

> Only in Yerushalayim.  The rest of EY always kept 2 days, because the
> shluchim can't leave the techum of Y"m until after dark, by which time
> the rest of the country has already begun celebrating the 2nd day.

That's what I said. See above.

...
>> Well, I'll grant that the above was probably true 99 percent of the
>> time but only because the sanhederin was generally stationed in the Bais
>> haMikdash and the halachah is "ein shvus baMikdash" so they always blew
>> in the Bais haMikdash. But what will you say during the time when the
>> Sanhedrin was exiled to yavneh?

> In Yavneh they blew on Shabbos.

How do you know?

Simcha Coffer

On October 17, 2005 Kohn, Shalom wrote:
> Per R. Coffer --
<Once again, you are asking from a dissimilar case. The case of RH is
referring to millions of private citizens spread out across the entire
country, some of whom are am aratzim and due to the fact that they
don't know how to blow the shofar, they might take it to a baki. On YK,
there is no private chiyuv to hear tekias shofar and thus no one will
be carrying their shofaros from home to a baki to have them blow. Tekias
shofar after YK is only a minhag tzibur so if you happened to be in shul
after YK is over, you will hear a blast. Also, in view of the fact that
the baal-tokeah is blowing the shofar, he is probably a baki. We are
not choshesh bekeeim of carrying on Shabbos just am aratzim. Besides,
even if the baal-tokeah was an am haAretz, YK doesn't have nearly the
same statistical probability of chilul Shabbos as RH does (due to its
tzibbur centerd nature) and thus a gezeira was not necessary.>

> Actually, the Rosh Hashana prohibition is that the shofar will be taken to
> a "chacham," so that the tokaya will be able to ask about the proper way
> to do the tekiyot. On YK, there are no halachot for the tekiya gedola, so
> even apart from the fact (as some have noted) that the blowing is after YK
> such that the shofar could be brought to shul right before it was needed
> (or it could be left in shul!), there was no basis for a similar gezairah.

Although in spirit I agree with the above, I took the Rambam into
consideration when responding. The Rambam says that the gizeira is due
to the fact that one might take it to a baki so the *baki* will blow it
for him.

Simcha Coffer

On Mon, Oct 17, 2005 at 09:11:05AM -0400, David Riceman wrote:
:> therefore they knew, obviously, that <snip> if
:> they stopped people from blowing shofar on Shabbos to prevent possible
:> chillul Shabbos, there would still always be shofar-blowing on every
:> Rosh Hashana.

: What about lulav on Sukkos (only the first day is d'orayysa)?

Declaring a yoma arichta enables shofar on another day -- but also "only"
derabbanan. Just like the other days of Sukkos.

On Fri, Oct 14, 2005 at 03:29:34AM -0400, R. Alexander Seinfeld wrote:
: R. Moshe Heinemann spoke on this kasheh. He made the following insight:
: 1. The case the Gamara describes is HIGHLY unlikely - that someone
: will find a shofar in the street on Shabbos and take it to someone to
: repair it.

I suggested, and RZL provided sources, that gezeiros were made in response
to actual instances of violation -- not an unrealized fear that one
might occur.

This takes away much of the force of asking why was there a gezeirah
protecting against y, and not the seemingly greater risk of x. The answer
might simply be historical accident -- people happened to violate y.

-mi

-- 
Micha Berger             None of us will leave this place alive.
micha@aishdas.org        All that is left to us is
http://www.aishdas.org   to be as human as possible while we are here.
Fax: (270) 514-1507            - unknown MD, while a Nazi prisoner

RETurkel wrote:
> What is the law of a succah built against city regulations?
> Just read an article of succot built in Bnei Brak on stilts.

In Israel, this would be a violation of dina d'malka (according to Rav
Koo= k and others) and therefore would be a mitzvah ha'ba'a b'aveira
(no different than succah gezula, in a situation where karka eina
nigzeles does not apply--see SA OC 637:3--case of stealing a succah
on a boat). There is a machlokes of Ritva and Tosfos (quoted by Ritva)
in Succa 31a as to whether mitzvah haba'a b'aveirah invalidates a succah
(according to Tosfos, it doesn't because that rule applies only to items
which come "l'ratzos" such as korbanos and lulav).

Of course, most charedim don't agree with Rav Kook on this (and don't
believe that dina d'malchusa dina applies either, as that applies in
chutz la'aretz).

BTW, ROY in Yechave Da'at 5:46 s.v. "v'hein emes" writes very sharp words
against those who illegally take schach from Israeli nature reserves
(based on the concept that although normally schach gazul is not pasul,
that's because the person is considered to have acquired the schach
and is require= d to pay money; but that's only true where the person
intends to pay--see Ba'al Ha'Itur).

Moadim L'simcha.
Moshe

On Sun, Oct 16, 2005 at 02:37:24AM -0400, Ari Y. Weintraub, M.D. wrote:
: My question is, why does R' Henkin say "ain mosifin"? ...

I wonder if we can assume the calendar is word-for-word from R' Henken.

-mi

On Sun, Oct 16, 2005 at 11:55:49AM -0400, T613K@aol.com wrote:
: This could possibly provide evidence that teshuva, tefilla and tzedaka
: ma'avirin es roa hagezeirah, but then RJB provides something of a
: naturalistic explanation for his data...

Why "but"? All R"D JB did was define the mechanism through which the
RSO hides His tearing of the gezeirah by doing so bederekh hateva.

-mi

On Sat, Oct 15, 2005 at 10:43:02PM -0400, T613K@aol.com wrote:
: "Hakol tzafui veharashus nesunah" -- Hashem's foreknowledge of what we
: are going to do does not take away our bechira chofshis.

: Now if WE knew ahead of time what we were going to do, there might be
: a problem.....

The mishnah's point is to let us know that one does NOT disprove the
other. Rabbi Aqiva just asserts both sides of the paradox -- and does
not propose a resolution.

There is a lengthy Or Samei'ach on this, which we've discussed repeatedly
in the past. (Something for the wiki?)

-mi

From: T613K@aol.com
> It occurs to me that unlike all other yomtovim, Rosh Hashana is celebrated
> for two days even IN Eretz Yisrael ..[ ] .So IIRC Chazal made it always
> two days and called it "one long day" -- therefore they knew, obviously,
> that at least one day of RH ... would always be a non-Shabbos, so if
> they stopped people from blowing shofar on Shabbos to prevent possible
> chillul Shabbos, there would still always be shofar-blowing on every
> Rosh Hashana. ...

R. Toby  -  kevant le'daat gedolim (sort of).

R. Shaul Chono Kook, (younger brother of well known former Chief
Rabbi A. I. Kook) wrote about this. An article of his appears in
a collection of his works put out by Mossad Harav Kook, called
Iyunim U'Mechkarim. He also wrote an article about 2 days RH in
the periodical Sinai in 5709. This fortunately appears on line at
<http://www.daat.ac.il/daat/kitveyet/sinay/shney-4.htm.>

He adduces historical evidence and fleshes out Toby's basic idea about 2
days RH in EY (Eretz Yisrael) . He writes that although there was a time
period after the luach was fixed that even in EY there was only one day
of RH, at a certain point the custom became to keep 2 days RH in EY so
that there should always be one non-Shabbat RH day. There is convincing
evidence, for instance, from the Geonim that in certain periods in EY
the practice was to keep only one day. He puts it in historical context -
when the practice was only one day of RH in Eretz Yisrael and when there
were two.

R S.H. Kook was loved and respected by his more renowned brother, and
there are a number of letters extant from the R. A.I. Kook to him in
R.Kook's collections of letters. But their writing styles and inclinations
are different , as anyone who reads the writings of these two brother's
will see.

It is clear that R. S.H. Kook sees the final shift to two days in EY as
being later than the "Chazal" that Toby ascribes the decision to.

Dov Bloom

Dov A Bloom
dovb@netvision.net.il

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


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