Avodah Mailing List

Volume 28: Number 141

Thu, 21 Jul 2011

• 1. dina demalchuta (Eli Turkel)
• 2. Re: dina demalchuta (Rich, Joel)
• 3. Re: dina demalchuta (Micha Berger)
• 4. Re: dina demalchuta (Rich, Joel)
• 5. Re: beautifying the mitzvas.....priorities in spending?? (Micha Berger)
• 6. dina demalchuta (Eli Turkel)
• 7. Re: beautifying the mitzvas.....priorities in spending?? (Rich, Joel)
• 8. Re: No Image at Choreiv? (Moshe Y. Gluck)
• 9. Re: dina demalchuta (Zev Sero)
• 10. Re: dina demalchuta (kennethgmil...@juno.com)
• 11. Re: No Image at Choreiv? (Yitzchok Zirkind)
• 12. Re: dina demalchuta (Arie Folger)
• 13. Re: No Image at Choreiv? (Arie Folger)
• 14. Difference Between a Man's Vows and a Woman's Vows (Prof. Levine)
• 15. Re: No Image at Choreiv? (Micha Berger)
• 16. Kofin Oso (Chana Luntz)

<<Similarly, RZS's explanation could fit the cases of DDD in the gemora, were
it not for all of the rishonic and achronic explanation which is predicated
on DDD being an obligation, and not merely a recognition of validity.>>

According to most achronim including RMF one is obligated to pay taxes
and obey other laws of the kingdom that dont conflict with halacha.
I understand that some poskim that disagree with RMF and I assume Zev
is holding like those poskim but my reading is that is not the general
mainstream. Again I previously gave a link to an article by Eli Clark
on the chiyuv to pay taxes

-- 
Eli Turkel

According to most achronim including RMF one is obligated to pay taxes and obey other laws of the kingdom that dont conflict with halacha.
I understand that some poskim that disagree with RMF and I assume Zev is
holding like those poskim but my reading is that is not the general
mainstream. Again I previously gave a link to an article by Eli Clark on
the chiyuv to pay taxes

--
Eli Turkel
========================
R'HS has been espousing a chiyuv based on shutfut.
KT
Joel Rich
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE 
ADDRESSEE.  IT MAY CONTAIN PRIVILEGED OR CONFIDENTIAL 
INFORMATION THAT IS EXEMPT FROM DISCLOSURE.  Dissemination, 
distribution or copying of this message by anyone other than the addressee is 
strictly prohibited.  If you received this message in error, please notify us 
immediately by replying: "Received in error" and delete the message.  
Thank you.

On Wed, Jul 20, 2011 at 03:08:48PM -0400, Eli Turkel wrote:
: According to most achronim including RMF one is obligated to pay taxes
: and obey other laws of the kingdom that dont conflict with halacha.

: I understand that some poskim that disagree with RMF and I assume Zev
: is holding like those poskim...

In '07 <http://www.aishdas.org/avodah/vol23/v23n020.shtml#14> RAF (who
must have been living in South Switzerland at the time, "Shalom Y'all"?)
pointed out that DDD means three things:

1- The power of civil law to define minhag hasokherim,
2- the power of taxation
3- the responsibility to maintain a safe and orderly society.

Taxes is a weak example, since the Rabbeinu Tam's hefqer BD hefqer
rationale only supports the latter two. Claiming "other laws of
the kingdom" involves the third category.

All this began with a question about whether one is permitted/obligated
to violate DDD to implement "kofin oso ad sheyomar rotzeh ani". Which
is a different topic than taxation.

Tir'u baTov!
-Micha

-- 
Micha Berger             When we are no longer able to change a situation
mi...@aishdas.org        -- just think of an incurable disease such as
http://www.aishdas.org   inoperable cancer -- we are challenged to change
Fax: (270) 514-1507      ourselves.      - Victor Frankl (MSfM)

 


In '07 <http://www.aish
das.org/avodah/vol23/v23n020.shtml#14> RAF (who must have been
living in South Switzerland at the time, "Shalom Y'all"?) pointed out that
DDD means three things:

1- The power of civil law to define minhag hasokherim,
2- the power of taxation
3- the responsibility to maintain a safe and orderly society.

Taxes is a weak example, since the Rabbeinu Tam's hefqer BD hefqer
rationale only supports the latter two. Claiming "other laws of the
kingdom" involves the third category.

All this began with a question about whether one is permitted/obligated to
violate DDD to implement "kofin oso ad sheyomar rotzeh ani". Which is a
different topic than taxation.

Tir'u baTov!
-Micha

--------------------------------------------------------------------
And to bring things full circle - the language of the Rambam is clear that
a beit din makes the determination of kofin oso and it's bkol zman/makom. 
My thought was that this implies to me that beit din is acting under 3
above in this case (i.e. the power of melech) else where do we see beit din
from power of sanhedrin having the right to use "non halachic" force (my
own thought and if I'm off base, I'd be the first to admit it)
KT
Joel Rich
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE 
ADDRESSEE.  IT MAY CONTAIN PRIVILEGED OR CONFIDENTIAL 
INFORMATION THAT IS EXEMPT FROM DISCLOSURE.  Dissemination, 
distribution or copying of this message by anyone other than the addressee is 
strictly prohibited.  If you received this message in error, please notify us 
immediately by replying: "Received in error" and delete the message.  
Thank you.

On Wed, Jul 20, 2011 at 09:53:20AM -0700, Harvey Benton wrote:
:                    Can we justify three or four hundred
: dollar etrogim, etc,  if we know that our neighbor needs
: medical attention and cannot afford it??

: are we responsible (or even required menchlachkeitly)
: to buy a less expensive etrog (or R. Tam Tfilling, etc)
: for our son/s, if we know that our neighbors/fellow jews/
: lack/s basic medical necessities, housing, food, etc...
: ?????

On Wed, Jul 20, 2011 at 02:34:12PM -0400, Rich, Joel wrote:
: 1. If one is giving the halachically required (or even more so the
: maximum) amount of tzedaka, no chiyuv to give more

It's unclear if there is a maximum if people are coming to you. I actually
know and look up to a couple who rely on this heter. (I also wonder about
the eficacy of telling HS scholarship committees that since you are spending
more than 20% of your income on educating above-bar/t-mitzvah-age children,
you are being asked to violate halakhah.)

: 2. by this definition one would be required to give up all discretionary
: spending as long as there was one individual in need.

I think this is different. We can ask about the proper balance of money
spent on mitzvos and that on luxury, and why it isn't 100% vs 0%. But I
understood RHB as asking more about what attitude we should have toward
various mitzvos: Should we be thinking of a $300 esrog the same way we
do as luxuries -- the mitzvah we want and would need to pull money away
from for tzedaqah?

IOW, since this person does today want to buy that extra beautiful pair
of tefillin, he should buy them mikal vachomer from the permissability
of buying luxuries.

People spend money on what motivates them. If we give too many rules about
which mitzvah he ought to invest in, or which tzedaqah has priority,
we are likely to find that less money is being spent overall. People
both need and deserve some freedom to make these decisions according to
their own interests.


But (and this is how I understood the original question) should we be
working on reprioritizing our relative love of various mitzvos? *Ought*
hiddur mitzvah be more important to me than the mitzvah itself of
tzedaqah?

Tir'u baTov!
-Micha

-- 
Micha Berger             When memories exceed dreams,
mi...@aishdas.org        The end is near.
http://www.aishdas.org                   - Rav Moshe Sherer
Fax: (270) 514-1507

I am still confused by how anyone can deny that dina dimalchuta is an
obligation at least in many cases
The obligation to pay taxes (again at least some kinds of taxes) is
taken for granted under DDD.
The exact taxes that are included is a debate amongst rishonim
depending on the source of DDD.
Thus, paying taxes to a secular government is a religious obligation

Again see
http://www.jlaw.com/Commentary/payingtaxes.html

-- 
Eli Turkel

 



But (and this is how I understood the original question) should we be
working on reprioritizing our relative love of various mitzvos? *Ought*
hiddur mitzvah be more important to me than the mitzvah itself of tzedaqah?

Tir'u baTov!
-Micha

-- 
This would imply-even in your narrowed definition-that there would never be
any spending on hiddur mitzvah. But I'll go you one better-why spend money
on being a baal nefesh rather than giving it to tzedaks.
KT
Joel Rich
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE 
ADDRESSEE.  IT MAY CONTAIN PRIVILEGED OR CONFIDENTIAL 
INFORMATION THAT IS EXEMPT FROM DISCLOSURE.  Dissemination, 
distribution or copying of this message by anyone other than the addressee is 
strictly prohibited.  If you received this message in error, please notify us 
immediately by replying: "Received in error" and delete the message.  
Thank you.

R' MB:
HOWEVER.... while I agree with the Rambam that Hashem has no guf ugevi'ah,
how can we say that noone saw a picture of one at Choreiv? Shemos 24:10,
speaking of Moshe, Aharon, Nadav, Avihu, and the 70 zeqeinim, "Vayir'u
es E-lokei Yisrael, vesachas Raglav kemaaseih livnas hasapir..."
---------------------


visions in his books. So there was no Temunah, but they saw some mental,
spiritual manifestation of what Elokai Yisroel looks like in a world where
vision doesn't exist.

KT,
MYG

On 20/07/2011 5:20 PM, Eli Turkel wrote:
> I am still confused by how anyone can deny that dina dimalchuta is an
> obligation at least in many cases
> The obligation to pay taxes (again at least some kinds of taxes) is
> taken for granted under DDD.

Not quite.  What's taken for granted is that the proper taxes (whatever
they might be) belong to the king.  I've never seen *anywhere* mention
of an obligation to seek him out and hand his property over, but if his
men come asking for it and one deliberately hides it one's getting into
the question of where the line lies between oshek and gezel.  Remember
that gezel nochri is assur d'oraisa.

-- 
Zev Sero        If they use these guns against us once, at that moment
z...@sero.name   the Oslo Accord will be annulled and the IDF will
                 return to all the places that have been given to them.
                                            - Yitzchak Rabin

                    
                

R"n Lisa Liel wrote:

> Zev is saying that it's not in a bucket. It's simply a recognition
> that their dinim *are* dinim.  Not that we're necessarily bound by
> them.
>
> Here's a nafka mina.  If I break US law while not otherwise
> violating halakha, by Zev's reasoning, the halakha has no problem
> with what I did. But if the US government puts me in jail for it,
> it's legitimate on their part.  The halakha recognizes the
> legitimacy of their actions.
>
> I was once a camp counselor, and I had some issues with some of
> the inane rules that had been dictated between the time I was a
> camper and the time I returned as a counselor.  I told my campers
> that I had no problem with them violating those particular rules,
> but that if they got caught, they were on their own.  This seems
> to me a parallel situation. 

I have heard a similar concept. Namely, that DDD does *not* automatically
apply to all of the government's laws. I recall once reading something
written by Rav Yissochor Frand of Ner Yisrael, who gave an example of
speeding laws. He said that when one drives, there is a range of speeds,
slightly over the speed limit, where one is technically in violation of the
law, but such violations are routinely ignored by the police. He said that
DDD only recognizes the law as enforced by the police, not as officially
written in the books.

Unfortunately, I cannot find where he said that. But I did find something
very similar from Rav Yisroel Belsky, at http://www.torah.
org/learning/honesty/class12.html

Rav Belsky wrote:

> Is it permissible to jaywalk and to walk against a red light even
> though it is technically illegal?
>
> Some people claim that dina d'malchusa dina (the law of the land),
> applies even to these issues. I think it all depends. When the
> streets are empty and there is no traffic -- for cars it is
> considered a major offense to go through red lights even then.
> But for pedestrians, I don't think the government is that
> concerned. But when there's a lot of traffic, and people still
> walk in the street, and it makes your heart skip to see cars
> dodging the people, then it's a terrible thing to do.

Akiva Miller

____________________________________________________________
57 Year Old Mom Looks 27!
Mom Reveals $5 Wrinkle Trick That Has Angered Doctors!
http://thirdpartyoffers.juno.com/TGL3131/4e276e6b18ce8f92e0st01vuc

On Wed, Jul 20, 2011 at 9:44 AM, Micha Berger <mi...@aishdas.org> wrote:
> Devarim 4:15 says "ki lo re'isem kol temunah beyon diber H' aleikhem
> bechoreiv mitokh ha'eish".
>
> The Rambam (Yesodei haTorah 1:8) cites it as one of his proofs "she'ein
> HQBH guf ugevi'ah".
...
> how can we say that noone saw a picture of one at Choreiv? Shemos 24:10,

The Rambam deals with this Possuk right in the begining of the next Halacha
(1:9)

-- 
Kol Tuv,
Yitzchok Zirkind

While the case for DDD is being eloquently argued and there is hardly
any need for me to add much, there is one point I'd like to raise,
namely the context of the DDD quote from Shemuel in Gittin.

At issue there are contracts written under the auspices of gentile
courts, signed by gentile witnesses, which Shemuel renders kosher on
account of DDD. Now that's not just a matter of saying that gentile
contracts are kosher, because ...

Throughout all generations, Jews have worried, in two respects,
regarding the validity of unusual contracts. One is worrying about
corruption, untruthfulness. Another one is the idea of halakhic
neemanut. These two may look very much alike, but they are not. The
former is something that depends on the situation, while the latter is
the result of how dinim are explained in teh Torah, i.e., hilkhot
'edut, etc.

The gemara distinguishes between extrajudicial contracts, which may
fail on the first ground, and contracts executed under the auspices of
a gentile court, which does NOT fail on the first ground. However,
even a gentile court, however honest it may be, however integer,
however trustworthy, is nonetheless devoid of halakhic neemanut.

So when Shemuel says that gentile contracts executed under aegis of a
court are valid, it means that Reuven can force Shimon to comply with
a shtar signed by Christopher Smith and Jennifer McCoy, despite the
fact that those would never be valid 'eidim in beit din. Does Shmuel
say that such a shtar is valid because benei noa'h nitztavu 'al
hadinin and that is an example of din? No. The Noa'hide argument would
only take us so far, that Noa'hides would be obligated to follow their
rules, but meheikhi teitei that Jews should be subject to that against
the usual halakhic rules? And it is to that that Shemuel says DDD. He
obviously means that because the gentile government decreed such kinds
of contracts binding, that is why we will halakhically consider them
binding, too. Lacking such a government decree, there is no reason
whatsoever to suppose that we would consider the contracts valid.

Rashi does not come to explain that part, but rather to explain why
DDD would not override usual halakha for gittin, too. To that Rashi
says that the Noa'hides are not subject to the Jewish laws of
marriage, as BN marriage follows different rules (there are a number
of ma'hloqot about that, too), and since for gittin there is a
requirement of benei keritut, therefore DDD falls flat in the case of
gittin.

Now we may fruitfully discuss whether gittin is an exception or some
kind of general rule, an issue on which RMB and RZS disagree. Let me
explain.

Shtarot generally come in two flavors, shtarot raaya and starot qiyum
/ 'haleis. A get is clearly of the latter category. But is the shtar
Shmuel considers valid of the latter category, and does DDD even have
the power to create a priori monetary obligations between two Jews, or
does the DDD merely give power to the shtar to function as evidence,
while we suppose that the monetary obligation was created by a bona
fide qinyan?

The former position would rest on ascribing hefqer beit din hefqer
power to the melekh.

I am not sure what the practical difference between the two is. I was
first tempted to say imagine that Shim'on admits that Reuven's shtar
is genuine, but says that the house he sold Reuven was never
transferred through a qinyan (say Reuven was away and couldn't do
'hazaqa). And let's say that Reuven agrees on the latter point. And
let's say that the money was transferred by the bank (transfer of a
shi'abud milve, from Levi owing Reuven to Levi owing Shim' on), so
that there is no qinyan kessef, either. May Shim'on keep the money and
yet keep the house he sold? I don't think so, because at least we'd
say that mishtashei lei, Shim'on benefited from Reuven's wealth and
must provide a counter service. I guess that the difference is whether
Shim'on may still, even weeks after the fact, until Reuven makes a
bona fide qinyan, change his mind and revert the sale.

Anyway, from the above it is quite clear that even without Rashi, just
from teh Gemara, Shemuel is talking about a fairly substantive
legislation, alas one that relates to memonot only. And it
significantly surpasses the power of setting situmta / minhag
hasokherim, as those relate to the terms of a contract and the form of
a qinyan, but neither the validity contract itself nor to creation of
an effective qinyan lacking *any* actual qinyan.


Kol tuv,
-- 
Arie Folger,
Recent blog posts on http://ariefolger.wordpress.com/
* The Ecologically Correct Funeral
* The Goodly Tents of Jacob
* Biblical Advice for the Internet Age
* Audio-Vortr?ge: Die j?dischen Hauptereignisse des 20. Jahrhunderts
* Meditating on the Tragedy in Japan

RMB wrote:
> HOWEVER.... while I agree with the Rambam that Hashem has no guf
> ugevi'ah, how can we say that noone saw a picture of one at Choreiv?
> Shemos 24:10, speaking of Moshe, Aharon, Nadav, Avihu, and the 70
> zeqeinim, "Vayir'u es E-lokei Yisrael, vesachas Raglav kemaaseih livnas
> hasapir..."

I'd like to suggest, as per Ramban, that they saw the maaseh merqava,
not G"d. Veyecheyu would then mean they saw the traces of His
presence, not Himself.

-- 
Arie Folger,
Recent blog posts on http://ariefolger.wordpress.com/
* The Ecologically Correct Funeral
* The Goodly Tents of Jacob
* Biblical Advice for the Internet Age
* Audio-Vortr?ge: Die j?dischen Hauptereignisse des 20. Jahrhunderts
* Meditating on the Tragedy in Japan

The following is from the commentary of RSRH on Bamidbar 30:4.

4 But [as for] a woman, if she vows a vow to God 
and binds [herself] a bond in her father?s house in her youth,

A man?s vow is binding on him from the outset. He can ?
and should (see ibid. 59a; cf. Commentary, Devarim 23:22ff.) ? submit
his vow to the national community and its representatives, so that they
should examine the vow and decide on its fulfillment. Only in this way
can a man dissolve his vow. For a man creates his position in life inde-
pendently, and if he binds himself with a vow that cannot be absolved,
he introduces into his life a new element that is not ordinarily applicable.
This element changes and individualizes his life, and, since he is independent,
he is able to take this individuality into account when he shapes
the conditions of his life.

Not so for a woman. The moral greatness of the woman?s calling
requires that she enter a position in life created by another. The woman
does not build for herself her own home. She enters the home provided
by the man, and she manages it, bringing happiness to the home and
nurturing everything inside the home in a spirit of sanctity and orientation
toward God. The woman ? even more than the man ? must
avoid the constraint of extraordinary guidelines in her life, for they are
likely to be an impediment to her in the fulfillment of her calling.
 From this standpoint, one can understand the prescriptions instituted
here out of concern for the woman. The Word of God seeks to
insure the vowing woman against the consequences of her own words,
and therefore confers on the father and on the husband a limited
right to annul vows ? on the father, as regards vows of a youthful
daughter still under his care; on the father and on the fianc?, as regards
vows of a betrothed daughter; on the husband, as regards vows of his
wife.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.aishdas.org/pipermail/avod
ah-aishdas.org/attachments/20110721/67f91450/attachment-0001.htm>

On Wed, Jul 20, 2011 at 06:03:44PM -0400, Moshe Y. Gluck wrote:
:> HOWEVER.... while I agree with the Rambam that Hashem has no guf ugevi'ah,
:> how can we say that noone saw a picture of one at Choreiv? Shemos 24:10,
:> speaking of Moshe, Aharon, Nadav, Avihu, and the 70 zeqeinim, "Vayir'u
:> es E-lokei Yisrael, vesachas Raglav kemaaseih livnas hasapir..."

: It was a mental image, presumably, similar to how R' Aryeh Kaplan describes
: visions in his books. So there was no Temunah, but they saw some mental,
: spiritual manifestation of what Elokai Yisroel looks like in a world where
: vision doesn't exist.

On Thu, Jul 21, 2011 at 07:58:48AM +0200, Arie Folger wrote:
: I'd like to suggest, as per Ramban, that they saw the maaseh merqava,
: not G"d. Veyecheyu would then mean they saw the traces of His
: presence, not Himself.

Both of these answers presume that "temunah" means the actual sight of
the entity itself, rather than a picture.

But c.f. "lo saaseh lekha kol pesel vekhol temunah asher bashamayim
mima'al..." A temunah is an image of something else. (I think it's
from min/mwn [kind], and refers to the original and the temunah's
kindredness.) Even if it's mentally constructed in response to the mind
trying to wrap itself around information being received prophetically,
it's stil a temunah, IMHO.

On Wed, Jul 20, 2011 at 09:10:24PM -0400, Yitzchok Zirkind wrote:
: The Rambam deals with this Possuk right in the begining of the next Halacha
: (1:9)

Now, THAT'S embarassing.

The Rambam in Yesodei haTorah 1:9 invokes "diberah Torah kilshon benei
adam", which I would take to mean they didn't even have a prophetic
vision.

HOWEVER...

The Rambam in the Moreh 2:6 writes that they saw bederekh nevu'ah the
kavod nivra, created just for this purpose. This is what I was thinking
was *the* position of the Rambam when I asked the question in my prior
post.

It is also a variation on R' Saadia Gaon's theme (Emunos veDei'os 2:10),
where they saw the kavod nivra -- but through actual normal sight.
The Ramban says they did see the Shechinah, which he says is G-d, and
did so propehtically. Back in vol12 or so, I wove this together with the
Abarbanel's defense of the Rambam against the Ramban in parashas Vayeira,
and honed it to the openining vort in Mesukim MiDevash for Mishpatim
<http://www.aishdas.org/mesukim/5764/mishpatim.pdf>. Teaser: the Ramban
defines nevu'ah as a message from HQBH, and thus one is seeing symbols;
the Rambam defines nevu'ah as experiencing things from higher planes of
reality. That is how the Abarbanel explains that mal'akhim that Avraham
sees in a chazon actually are there to interact with Sodom, Amora,
Lot and his family, etc... It also explains why the Rambam can't say
they actually saw G-d, but the Ramban can. To the Ramban, they saw the
prophetic equivalent of a sheim -- a token that represents the Creator.

Still, I took it for granted that a kavod nivra created to represent
HQBH would be a temunah; since temunah means roughly "something that
looks like the original".

But in the Yad, the Rambam addresses the question by saying they didn't
even really see the kavod nivra???

Tir'u baTov!
-Micha

-- 
Micha Berger             It's nice to be smart,
mi...@aishdas.org        but it's smarter to be nice.
http://www.aishdas.org                   - R' Lazer Brody
Fax: (270) 514-1507

RMB writes:

> In my experience, it is usually explained that kefiyah can produce a
> valid get because the kefiyah is halachically legitimate (mandatory and
> thus permitted), Then the "rotzeh ani" is really a haaramah, one that
> bothers me because (1) we don't allow haaramos in dinim deOraisa, and
> (2) it smells so inquisitional.
> 
> I am suggesting that get anusah is only a problem when it's a pure
> oneis, with no ratzon at all backing it. That a ratzon overshadowed
> by another ratzon is sufficient for a get to be valid -- if the
> ratzon's existence could be brought to light (thus "ad sheyomar").


Hold on, hold on.

It seems to me that if we want to discuss this topic, it would be really
handy to see what the gemora has to say on the subject (and not just the
Rambam).

While the reference to rotze ani comes up in a whole bunch of places
(including the mishna in Arechin), let's look at two sources, which I will
quote in Hebrew and in (half translated) English:

The first source is Kiddushin 49b-50a - and they are discussing a sale where
the man in question only wanted the sale to go through if he in fact made
aliyah, and then he didn't manage it, but he never mentioned anything about
this at the time of the sale, and Rava therefore ruled that this was a valid
sale, despite his intention, based on the principle of devarim shebelev
ainun devarim.  The gemora then goes on to discuss how do we know this
principle:

??? ???: ??? ????? ????, ?????? ???? ???? ?????. ??? ??? ???? ??? ?????? ???
????: +????? ?+ ????? ???? - ???? ?????? ????, ???? ??? ????? ????? ????:
??????, ?? ????? ????? ???? ?? ????? ???? ???; ?????? ?? ????? ?? ???? ???!
??? ??? ???? ??????? ????? ???? ???? ?????. ?????? ???? ???, ???? ???? ?????
??? ?????! ??? ?????: ??? ??? ???? ????? ???? ??????? ?????, ????? ???? ??
????? ???? ???; ?????? ?? ????? ?? ???? ???! ??? ??? ???? ??????? ????? ????
???? ?????. ????? ???? ???, ???? ????? ????? ???? ?????!

"Rava said, these are devarim shebelev and devarim shebelev anam devarim.
From where does Rava know this? if you say from here:  it is taught in a
Mishna (Vayikra 1:3) ?v?yikarev oso?, to teach that they force him [to bring
a korban he is require to bring], I might have thought against his will, the
Torah teaches, (Vayikra 1:3) ?l?rotzono?.  How is this?  They force him
until he says rotzei ani.  Now why?  Certainly in his heart he was not
desirous.  Rather is it not because we say devarim shebalev anun devarim?
But perhaps it is different there, because we can witness that the person
really desires atonement [which he is only going to get if he brings the
sacrifice].  Rather from the end [of the braisa], and so you find with
gittei nashim and shichrurei avadim that they force him until he says rotze
ani.  And why?  Certainly in his heart he was not desirous. Rather is it not
because devarim shebalev anan devarim?  But perhaps it is different there
because it is a mitzvah to listen to the words of the Chachamim?"

As you can see from this the gemora itself brings a possible reason why a
get the result of force is valid as being because it is a mitzvah to listen
to the words of the Sages.  On the other hand, given that we do hold that
devarim shebelev anun devarim, then that can also be the reason why it works
(it is just that it cannot be the source to know this ruling, since there is
an alternative explanation).

The second source is Baba Basra 47b-48a - here they are discussing the
validity of a sale if in order to engineer the sale, the seller was forcibly
hung up eg on a tree or tortured:

??? ?? ????: ?????? ????? - ?????? ?????; ?"?? ?? ?????? ?????, ?? ??? ?????
?? ??? ?????, ?????? ??? ?????? ?????. ?????? ???? ????? ?????? ??????
???????! ??? ??????: +????? ?'+ ????? ???? - ???? ?????? ????, ???? ???
????? ????? ????: ??????, ?? ????? ????? ???? ?? ????? ???? ???. ????? ????
???, ????? ??? ?????? ??? ????! ???? ?????: ??? ??? ???? ????? ????, ?????
???? ?? ????? ???? ???. ????? ???? ???, ????? ????? ???? ?????! ??? ????
???, ??? ?????? ??? ?????. ????? ?? ?????: ?? ??????, ?????? - ???, ?????"?
- ????, ?????"? - ?????? ???? ??????? ??: ??? ?? ?????? ???? ??; ?????? ???
??? ????: ??? ?????? ??? ?????! ?? ????? ???, ??? ?? ??????: ??? ???? ?????
????"? ???, ??? ??? ???? ????"? ????? ??? ??? ??? ?? ??? ???? ????? ?????
???? ??? ???"? ?????? ???? ??? ????


"Rav Huna said: if they hung him until he sold, the sale is a valid sale.
What is the reason? In any personal sale, if it were not for compulsion a
person would not sell, and even so, the sale is a valid sale.  But maybe it
is different if he compels himself than if others compel him?  Rather like
it is taught in a braisa : (Vayikra 1:3) ?y?karev oso?, to teach that they
force him, I might have thought against his will, the Torah teaches,
(Vayikra 1:3) ?l?rotzono?.  How is this?  They force him until he says rotze
ani.  But perhaps it is different there, because he was desirous of the
atonement.  Rather from the end of the braisa: and similarly is said with
gittei nashim, they force him until he says rotze ani.  But perhaps it is
different there, since it is a mitzvah to listen to the words of the
Chachamim.  Rather it is a svara: because of compulsion it was finalised and
he sold.  Rav Yehuda objected: a coerced get, with a Jew is kosher, with a
non Jew is posel, but with a non Jew ?they  can strike him and say to him do
what the Jew [ie beis din] says to you.  And why? There too because of
compulsion it was finalised and he divorced.  It was indeed said on this,
Rav Mesharsha said:  according to the Torah even [coercion] by a non Jew is
kosher, and what is the reason that [coercion] by a non Jew is posel? So
that it should not be that every [woman] should go and place herself in the
hand of the non Jew in order to uproot herself from the hand of her
husband."

Now this gemora seems to state that d'orisa a non Jew's compulsion is also
valid.  Ie there really isn't a harama, what a person says on being
compelled stands whether a sale or get or a korban (which would seem to
suggest that even if the aspect of listening to the words of the Chachamim
were taken out of the picture, on a Torah level, his rotze ani works).  It
is just that the Chachamim were concerned with abuse of this, and so
invalidated any get produced by this method, unless in fact the non Jews are
acting under Jewish orders.

Note also that from a straight reading of the maskana gemora, there is
ultimately no requirement of beis din to be the one forcing, just a Jew
rather than a non Jew (although in the hava mina there is, since there is
clearly only a mitzvah to listen to the Chachamim if they are genuinely
Chachamim). I will try and bring the Shulchan Aruch and discussions on this
another time, as I think this post is long enough (and I need to do other
things), but I hope that this a least gets you into the sugya.  One more
thing to add though, is the gemora in Rosh Hashana 6a which learns out an
obligation on beis din to compel (at least in the case of bringing a
korban).

????? - ????? ???? ??? ??????, ??? ??? ?????? ??? ????. ?????: +????? ?+
????? ??? - ???? ?????? ????, ???? ??? ???? - ????? ???? +????? ?+ ?????. ??
????? ????? ???? ?? ????? ???? ???.

"And you shall do ? this is a warning to Beis Din that they should make you
[pay your vow]. But why do I need this?  It is learnt in a braisa [Vayikra
1:3] ?v'yekarev oso?, to teach that they force him, I might have thought
against his will, the Torah teaches, [Vayikra 1:3] ?l'rotzono?.  How is
this?  They force him until he says rotzei ani."

Now while this gemora does not discuss gittei nashim, the implication would
be that similarly a Beis Din has an obligation to force in the correct
circumstances.

> Tir'u baTov!
> -Micha

Regards

Chana



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


Avodah mailing list
Avo...@lists.aishdas.org
http://lists.aishdas.org/listinfo.cgi/avodah-aishdas.org


End of Avodah Digest, Vol 28, Issue 141
***************************************

Send Avodah mailing list submissions to
	avodah@lists.aishdas.org

To subscribe or unsubscribe via the World Wide Web, visit
	http://lists.aishdas.org/listinfo.cgi/avodah-aishdas.org
or, via email, send a message with subject or body 'help' to
	avodah-request@lists.aishdas.org

You can reach the person managing the list at
	avodah-owner@lists.aishdas.org

When replying, please edit your Subject line so it is more specific
than "Re: Contents of Avodah digest..."