Volume 32: Number 157
Wed, 26 Nov 2014
Subjects Discussed In This Issue:
Message: 1
From: Zev Sero
Date: Mon, 24 Nov 2014 21:49:43 -0500
Subject: Re: [Avodah] heter mechira - lo techanem
On 11/24/2014 05:00 PM, Eli Turkel via Avodah wrote:
> What the rabbanbut has done in recent years is to overcome the last set
> of objections, through changing Israeli law.
> selling to a ger toshav, explaining to the farmer what he is signing,
I wonder, though, do the farmers really understand and accept that if the
buyer comes up with the money at the end of the year, he gets to keep their
farms? Are they OK with that? With mechirat chametz, we are more than OK
with it, we'd be delighted if the buyer decided to pay for all our chametz
rather than sell it back to us. We only offer to buy it back so that he will
agree to buy it in the first place. And I imagine some farmers would be
similarly happy to sell their farms if they could find a buyer. But surely
most farmers are attached to their land, and don't really want to sell it
permanently even if they got a good offer.
Go to top.
Message: 2
From: Ben Waxman
Date: Tue, 25 Nov 2014 22:27:31 +0200
Subject: Re: [Avodah] heter mechira - lo techanem
They sign a contract. Does it matter if "they are OK with that" once
they sign?
A rabbi involved with the process said that rabbanim sit down with the
farmers, explain everything, show them the (detailed) maps, read over
the contract with them - and a common reaction is reluctance to sign
once they realize just how real the sale is.
Ben
On 11/25/2014 4:49 AM, Zev Sero via Avodah wrote:
> I wonder, though, do the farmers really understand and accept that if the
> buyer comes up with the money at the end of the year, he gets to keep
> their
> farms? Are they OK with that?
Go to top.
Message: 3
From: Zev Sero
Date: Tue, 25 Nov 2014 15:45:11 -0500
Subject: Re: [Avodah] heter mechira - lo techanem
On 11/25/2014 03:27 PM, Ben Waxman via Avodah wrote:
> On 11/25/2014 4:49 AM, Zev Sero via Avodah wrote:
>> I wonder, though, do the farmers really understand and accept that if the
>> buyer comes up with the money at the end of the year, he gets to keep their
>> farms? Are they OK with that?
> They sign a contract. Does it matter if "they are OK with that" once they sign?
If there's no meeting of the minds, then yes, it does matter.
> A rabbi involved with the process said that rabbanim sit down with
> the farmers, explain everything, show them the (detailed) maps, read
> over the contract with them - and a common reaction is reluctance to
> sign once they realize just how real the sale is.
OK, so that would indicate that those who sign do accept it. In which case
I'm surprised that so many agree to sign. Are they just gambling that they
will be able to buy their farm back after shmita (if not from the buyer then
from whoever he sells it to)? Or are they really willing to accept a decent
buyout and look for something else to do? (I can certainly see an older farmer
thinking that way.)
Go to top.
Message: 4
From: Micha Berger
Date: Tue, 25 Nov 2014 14:41:58 -0500
Subject: [Avodah] Fwd: The Day Our Suffering Will End
From Revach L'Neshama ("A different kind of news")
-Micha
The Day Our Suffering Will End
Mi She'amar L'Olamo Dai Yomar L"Tzaraseinu Dai. He who said to His
world enough should say to our pain enough. What does it mean that
Hashem says to His world enough, and how is that connected to our
suffering?
Olam is like the word Haalem which means hidden. The definition and
essence of the world is the hiding place of Hashem. Hashem created
our world to challenge us to recognize Him even in the randomness
of nature and the apparent unabated evil acts that are perpetrated
daily without Divine reprisal.
The gemara in Pesachim (50a) says that in this world we make two
brachos, one bracha on good, HaTov V'HaMeitiv and one bracha for bad,
Dayan HaEmes. However says the gemara, in the next world there is only
one bracha since we will have the ability to recognize the goodness
in everything. What the gemara is saying is that even in this world
everything is good but we don't have the ability to recognize it,
for Hashem hides it from us. Even people with steadfast Emuna that
accept Hashem's decree and believe that it's good, still suffer and
therefore must say Dayan HaEmes. That is the nature of our world.
In other words our pain is, simply put, a lack of understanding, for
if we understood the reason for the seemingly bad things that happen
to us we would thank Hashem for they are always good. When will we
understand? Only when Hashem reveals Himself to the world and says
to His Olam, His hiddeness, Dai enough. Only then will our Tzoros
be behind us forever.
Rav Hutner (Pachad Yitzchaq on Rosh haShanah) ties the idea in the
third paragraph to "bayom hahu yihyeh H' echad ushemo echad". Also, to
the theme of Malkhiyos; the difference between Hashem as Melekh in the
abstract and unchanging sense, and Hashem accepted as Melekh. Leshitaso,
"Dayan ha'emes" is the Judge of truth -- deciding which truths to
reveal when.
Tir'u baTov!
-Micha
--
Micha Berger Mussar is like oil put in water,
mi...@aishdas.org eventually it will rise to the top.
http://www.aishdas.org - Rav Yisrael Salanter
Fax: (270) 514-1507
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Message: 5
From: Ben Waxman
Date: Wed, 26 Nov 2014 06:18:32 +0200
Subject: Re: [Avodah] heter mechira - lo techanem
On 11/25/2014 10:45 PM, Zev Sero via Avodah wrote:
> If there's no meeting of the minds, then yes, it does matter.
So why is this contract different than any other contract that one signs
without fully understand, agreeing to, the clauses, sub-clauses,
sub-sub-clauses? I seriously doubt that any beit din would throw every
single mortgage contract on the basis that no one, but no one (except
the bank lawyers who wrote them) understands them. I seriously doubt
that 1% of bank customers even read the endless papers that one signs.
Even a ketubah - many people write huge sum for her tosefet without any
intention of paying in the event of divorce. Are these marriage invalid?
Ben
Go to top.
Message: 6
From: Eitan Levy
Date: Wed, 26 Nov 2014 09:27:34 +0200
Subject: Re: [Avodah] heter mechira - lo techanem
"OK, so that would indicate that those who sign do accept it. In which case
I'm surprised that so many agree to sign. Are they just gambling that they
will be able to buy their farm back after shmita (if not from the buyer then
from whoever he sells it to)? Or are they really willing to accept a decent
buyout and look for something else to do? (I can certainly see an older
farmer thinking that way.)"
I expect the prices they are offering the land for are their l'chatchilah
asking prices, better than they would get, *practically*, on the open
market. Thus they could take the money and buy better land if they really
needed to (or invest in hi-tech and retire!). They probably also assume that
is an unlikely scenario, and they are correct...
--
Peace and Blessings,
-Eitan Levy
Tour Guide, Trip Coordinator
www.rabbieitan.com
Phone: +972-50-980-7602
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Message: 7
From: Kenneth Miller
Date: Wed, 26 Nov 2014 11:33:26 GMT
Subject: Re: [Avodah] heter mechira - lo techanem
R' Eitan Levy wrote:
> I expect the prices they are offering the land for are their
> l'chatchilah asking prices, better than they would get,
> *practically*, on the open market. Thus they could take the
> money and buy better land if they really needed to ...
I see two problems with this answer:
1) But this would merely shift the question to the other party: Why would
the non-Jew offer a price better than the open market? And if he *would* do
so, how sincere is he about it?
2) Is a specific price written into the sale? This would surprise me,
because the "open market value" could so very easily change during the
course of the year, either higher or lower.
Akiva Miller
____________________________________________________________
Odd Trick Fights Diabetes
"Unique" Proven Method To Control Blood Sugar In 3 Weeks. Watch Video.
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Message: 8
From: Zev Sero
Date: Wed, 26 Nov 2014 13:17:16 -0500
Subject: Re: [Avodah] heter mechira - lo techanem
On 11/25/2014 11:18 PM, Ben Waxman via Avodah wrote:
> On 11/25/2014 10:45 PM, Zev Sero via Avodah wrote:
>> If there's no meeting of the minds, then yes, it does matter.
> So why is this contract different than any other contract that one
> signs without fully understand, agreeing to, the clauses,
> sub-clauses, sub-sub-clauses?
A meeting of the minds is the most fundamental requirement of any contract,
and any court will throw out a contract where this was not present. This
doesn't necessarily mean a person is aware of all the details, but he must
certainly be aware of and agree to the purpose of the contract, i.e. the
sale of his land.
> I seriously doubt that any beit din
> would throw every single mortgage contract on the basis that no one,
> but no one (except the bank lawyers who wrote them) understands them.
> I seriously doubt that 1% of bank customers even read the endless
> papers that one signs.
A person who signs such a contract does so (or should do so) only on the
the advice of a lawyer who has read it on his behalf, and understood it,
and has advised him that it contains nothing that is against his interests.
> Even a ketubah - many people write huge sum for her tosefet without
> any intention of paying in the event of divorce. Are these marriage
> invalid?
Lack of a ketubah doesn't affect the validity of a marriage, but such a ketubah
may very well be invalid.
Go to top.
Message: 9
From: Prof. Levine
Date: Wed, 26 Nov 2014 13:21:34 -0500
Subject: [Avodah] Thanksgiving: Harmless Holiday or Chukos HaGoyim?
One of the interesting aspects of being American
and living in the ???Medina shel Chessed??? is
dealing with secular holidays. Of these holidays,
Thanksgiving is by far the most popular among
Yidden, with many keeping some semblance of
observance. On the other hand, it is well-known
that many contemporary poskim were very wary of
any form of actual Thanksgiving observance. This
article sets out to explore the history and
halachic issues of this very American holiday...
To find out more, read the full article
"<https://go.madmimi.com/redirects/1417025498
-1920a4ebb97643a8989527c44834d0ec-6174957?pa=26523554968>Insights
Into Halacha: Thanksgiving: Harmless Holiday or
Chukos HaGoyim?" For all of the Mareh Mekomos / sources, just ask.
Trotting Out the Turkey?
With several differing major approaches to
Thanksgiving advanced by contemporary
authorities, which is the prevailing custom?
Should turkey be on our plates this Thursday? The
answer is that it depends. As shown, there are
many authorities who maintain that Thanksgiving
dinner should be avoided at all costs. However,
many people do eat turkey on Thanksgiving, albeit
many with non-Thanksgiving-related intent.
(Remember, even kosher turkey prices drop for the
holiday!) Yet, it certainly seems preferable not
to make an ?exclusively for Thanksgiving? party.
Everyone should follow his community practice and
the lead of their knowledgeable halachic authority.
<Snip>
Although nowadays for many in Yeshivish and
Chassidic circles the idea of observing even some
semblance of Thanksgiving may seem an anathema,
it is interesting to note that many authorities
of the previous generation did not seem overly
concerned. In fact, as is widely known, the
annual Agudas Yisrael Convention, attended by
many Gedolim, was traditionally held over
Thanksgiving weekend for many decades, with turkey on the menu
See the above URL for more. YL
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Message: 10
From: Zev Sero
Date: Wed, 26 Nov 2014 13:50:07 -0500
Subject: Re: [Avodah] heter mechira - lo techanem
On 11/26/2014 06:33 AM, Kenneth Miller via Avodah wrote:
> R' Eitan Levy wrote:
>
>> >I expect the prices they are offering the land for are their
>> >l'chatchilah asking prices, better than they would get,
>> >*practically*, on the open market. Thus they could take the
>> >money and buy better land if they really needed to ...
> I see two problems with this answer:
> 1) But this would merely shift the question to the other party: Why
> would the non-Jew offer a price better than the open market? And if
> he*would* do so, how sincere is he about it?
That one's easy. He would do so for the same reason that he would offer
to buy everyone's chametz; he has been promised that he will be able to
flip it at a profit next week or next year.
> 2) Is a specific price written into the sale? This would surprise me,
> because the "open market value" could so very easily change during
> the course of the year, either higher or lower.
Doesn't matter. He's buying it now, at today's price. But there's no
need to write a specific price in; for chametz we agree that after yomtov
we will hire a professional valuer to assess the fair market value of all
the chametz, and the buyer will then pay that amount and take delivery of
the merchandise. In the resale agreement after Pesach we agree to buy it
back for fair market value plus a stipulated amount; thus there is no longer
a need to hire the valuer to determine the value. The same could be done
for the land, since it's easy to value land as at a specific date; we could
stipulate that the sale takes effect now, at today's value, but payment will
be due in a year, and at that time we will hire a valuer to tell us what the
value was today. Then when we buy it back we say we'll pay whatever the
valuer would have said, plus a stipulated amount.
My concern was that I assume most farmers don't regard their land as merely
an economic asset, to be disposed of the moment someone offers them a good
price. I assume that most farms are simply not for sale, even if a developer
were to make a good offer, because the farmer is attached to his land. But
maybe that's a stupidly romantic city-boy view, which farmers would laugh at.
Go to top.
Message: 11
From: Micha Berger
Date: Wed, 26 Nov 2014 14:23:33 -0500
Subject: Re: [Avodah] heter mechira - lo techanem
On Wed, Nov 26, 2014 at 06:18:32AM +0200, Ben Waxman via Avodah wrote:
: On 11/25/2014 10:45 PM, Zev Sero via Avodah wrote:
:> If there's no meeting of the minds, then yes, it does matter.
:> So why is this contract different than any other contract that one
:> signs without fully understand, agreeing to, the clauses,
:> sub-clauses, sub-sub-clauses? ...
: Even a ketubah - many people write huge sum for her tosefet without
: any intention of paying in the event of divorce. Are these marriage
: invalid?
From our friends at Kollel Iyun haDaf, BM 104b
<http://www.dafyomi.co.il/bmetzia/insites/bm-dt-104.htm>:
brought to you by Kollel Iyun Hadaf of Yerushalayim
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104b----------------------------------------104b
2) "ASMACHTA"
OPINIONS: The Gemara relates an incident in which a person made a
sharecropping agreement with a fieldowner. In the agreement, he
promised to pay an exaggerated fine of 1000 Zuz if he neglected
to work the land. He ended up leaving a third of the land
fallow. Neharda'i ruled that he was obligated to pay one third
of the 1000 Zuz, corresponding to the third of the land that he
left fallow. Rava ruled that his promise was an "Asmachta" and
therefore not binding.
The Gemara asks that Rava's ruling is contradicted by the
Mishnah. The Mishnah states that when the sharecropper promises that
he will pay for what the field would have produced in the event
that he leaves it fallow and does not work it, his commitment is
binding. Rava answers that when his commitment is not exaggerated,
it is not an Asmachta and is binding, but when it is exaggerated
(such as a commitment to pay 1000 Zuz), it is an Asmachta and is
not binding.
The concept of "Asmachta" is mentioned a number of times throughout
the Gemara. What is the definition of "Asmachta"? Three different,
but not necessarily mutually exclusive, descriptions of "Asmachta"
are offered by the Rishonim.
(a) The Gemara here defines an Asmachta as an agreement with
exaggerated terms ("Guzma," "Milsa Yeseira").
(b) The SEFER HA'CHINUCH (#343) defines an Asmachta as any
stipulation that is phrased as a penalty, even if it is not
stated in exaggerated terms. The Sefer ha'Chinuch agrees that an
exaggerated commitment is also considered an Asmachta, even when it
is not described as a penalty, as is evident from the Gemara here.
This description of Asmachta is derived from a statement of Rabah
earlier (66b). Rabah states that "any [statement of] 'if' is
not binding" ("Kol 'd'Iy' Lo Kani"). This means that a statement
such as, "If I do not [do a particular action, then I will have
to do such and such]," is a form of penalty and is considered an
Asmachta. Therefore, such a statement is not binding.
(c) A third possible type of Asmachta is defined by the Gemara
earlier (73b-74a) as a case in which a person agrees to a condition
that is not in his control. The Gemara there discusses a person
who is appointed as a Shali'ach to buy wine and who agrees that
if he fails to purchase the wine, he will pay his employer the
profits that he would have earned if he had bought it. In that
case, it is not fully in the Shali'ach's control ("b'Yado") to
buy the wine, because the sale is subject to the consent of the
seller who might not agree to sell. The Gemara there states that
this is an Asmachta because it is "not in his control."
TOSFOS there explains that there are three levels of something
that is beyond a person's control. The first level is a condition
which is completely out of a person's control (for example, when
a person gambles with dice). Tosfos says that such a case is not
considered an Asmachta. Anyone who agrees to such a risk knows from
the outset that he has no control over the matter. Therefore, it
is understood that he consented all along to lose his money. (This
level is called "Ein b'Yado Klal, Gamar u'Makni.")
At the other extreme is the fulfillment of a condition which
is completely within a person's control. Such a condition, too,
is not considered an Asmachta.
The only case that is considered an Asmachta, according to
Tosfos, is a case in which the condition is not completely beyond
the person's control, but it is also not completely within his
control. An example of such a case is the Gemara's case earlier,
concerning a Shali'ach who says that he will buy wine. The
act of buying wine is partially, but not entirely, within his
control ("b'Yado"), since it also depends on the consent of the
seller. (Y. Marcus)
...
3) HOW MUCH MUST A SHARECROPPER PAY FOR BEING NEGLIGENT OPINIONS:
The Gemara relates an incident in which a person made a
sharecropping agreement with a fieldowner. In the agreement, he
promised to pay an exaggerated fine of 1000 Zuz if he neglected to work
the land. He ended up leaving a third of the land fallow. Rava ruled
that his promise was an "Asmachta," and therefore it was not binding.
Although in such a situation, a sharecropper does not have to pay the
exaggerated penalty, does he have to pay the owner for the amount of
produce that the field would have produced had he worked it?
(a) The RIF maintains that although a sharecropper is not obligated to
pay the exaggerated penalty, he is not exempt from paying the value of
the fruit that the field would have produced had he worked the field.
The Rif reasons that when a sharecropper promises to pay 1000 Zuz as a
penalty, that promise includes an agreement to pay the amount of
potential profit that would be lost. (That amount certainly is less
than 1000 Zuz, and "Bichlal Ma'asayim Manah" -- the promise to pay the
larger amount includes within it a promise to pay the smaller amount.)
The Mishnah teaches that a promise to pay the amount of potential
profit lost is binding, since it is not an exaggerated promise.
The Rif cites further proof to his opinion from the Gemara later (109a)
which discusses the Halachah when a sharecropper (who normally receives
half of the profits) agrees that if he is negligent and causes a loss,
he will not be entitled to receive anything, even a share of the profit
which was produced. Rava rules that this is an Asmachta and is not
binding, and the sharecropper therefore receives a share in the profit
which was produced. However, Rava adds that although the sharecropper
does not forfeit all of his wages, the exact amount lost as a result of
his negligence is deducted from his wages. The Rif concludes from this
statement of Rava that although a sharecropper is not penalized with an
exaggerated amount, he nevertheless is penalized with a reasonable
amount when he enters into such an agreement. Similarly, in the case of
the Gemara here, although the sharecropper is exempt from the
exaggerated fine of 1000 Zuz, he would be obligated to pay the
reasonable amount of potential profit that was lost.
(b) The ROSH (9:7) disagrees with the Rif. He maintains that since the
exaggerated condition of 1000 Zuz is not valid, the sharecropper is not
obligated to pay anything. The Rosh makes a distinction between this
case and the case of the Mishnah. Although the Mishnah rules that a
sharecropper who committed to pay a reasonable amount (i.e. the amount
of potential profit that was lost) is obligated to do so, in the
Gemara's case -- in which he mentioned only an exaggerated sum -- his
words cannot be "divided" and his commitment therefore is not binding
at all. Regarding the Rif's proof from the Gemara later (109a), the
Rosh asserts that the sharecropper's commitment to forfeit his wages is
completely ineffective, and the value of the loss is deducted from his
pay for an entirely different reason. Whenever a sharecropper is in the
midst of working a field and is gaining the profits, a loss caused by
his negligence is deducted from his wages even if he made no specific
commitment. The case of the Gemara here, in contrast, is a case in
which the sharecropper did not do any work at all on the field, and he
therefore cannot be penalized unless he makes a commitment to that
effect.
HALACHAH: The SHULCHAN ARUCH (CM 228:2) prefers the Rif's opinion. The
VILNA GA'ON there (#3) mentions that the Rosh disagrees. (Y. Marcus)
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If both parties enter into a contract knowing it's exagerated, the
commonly agreed upon "real terms" that the guzma is supposed to be
describing are binding.
But if someone signs a contract not expecting to honor even one of its
terms, not even what the term really means (minus mutually understood
exageration), it's an asmachta and the contract as a whole is void.
Tir'u baTov!
-Micha
--
Micha Berger I always give much away,
mi...@aishdas.org and so gather happiness instead of pleasure.
http://www.aishdas.org - Rachel Levin Varnhagen
Fax: (270) 514-1507
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Message: 12
From: Micha Berger
Date: Wed, 26 Nov 2014 14:53:25 -0500
Subject: [Avodah] Once the Slaughterer is Given Permission...
RnTK mentioned on Areivim one of the maamarei Chazal (Mechilta Bo #11)
I find quite difficult:
Besha'ah shenitenah reshus lamashchis lechavel
eino mavchin bein tzadiq lerasha
So, if you do not subscribe to the idea that hashgachah peratis (HP) is
universal across all people, and you feel the "tzadiq" here is limited
to someone who is a minor tzadiq who doesn't deserve HP in this
instance, I can see how there is room to say that HQBH doesn't protect
the tzadiq from the mashchis.
BUT, how many of us actually believe that. Even among rishonim, few
limit HP to only a subset of people, and even fewer limit it to a
subset of tzadiqim (or of events in their lives). (Our universal HP
discussions usually revolve around events that do not involve people.)
Rashi (Shemos 12:22) quotes the Mekhilta and the Ramban doesn't
understand Rashi's words, but it doesn't seem to be over this issue.
And yet the Ramban does believe that all humans are subject to HP.
I *can* understand the less extreme idea that people, even tzadiqim
are judged in a she'as saqanah, such as entering a churvah. And if
we apply that to a time when nitenah reshus lemshchis (lo aleinu),
it would fit. But that's not "eino mavchin", which makes it sound
that danger is unrelated to the person's merit.
Thoughts?
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
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Message: 13
From: Zev Sero
Date: Wed, 26 Nov 2014 15:35:05 -0500
Subject: Re: [Avodah] Once the Slaughterer is Given Permission...
On 11/26/2014 02:53 PM, Micha Berger via Avodah wrote:
>
> And yet the Ramban does believe that all humans are subject to HP.
>
> I*can* understand the less extreme idea that people, even tzadiqim
> are judged in a she'as saqanah, such as entering a churvah. And if
> we apply that to a time when nitenah reshus lemshchis (lo aleinu),
> it would fit. But that's not "eino mavchin", which makes it sound
> that danger is unrelated to the person's merit.
AIUI there's no contradiction. It's not that there's no individual
decision "mi yichyeh umi yamus", it's that at such a time merit is not
a factor in making that decision. The weight of the "merit" property
is temporarily set to 0, and the decision is made entirely on other
grounds, that may seem random to us. Each person is judged, but the
tzadik and the rasha are, ceteris paribu, judged equally.
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Message: 14
From: Eitan Levy
Date: Wed, 26 Nov 2014 20:59:51 +0200
Subject: Re: [Avodah] heter mechira - lo techanem
R' Zev Sero writes: " My concern was that I assume most farmers don't regard
their land as merely an economic asset, to be disposed of the moment someone
offers them a good price. I assume that most farms are simply not for sale,
even if a developer were to make a good offer, because the farmer is
attached to his land. But maybe that's a stupidly romantic city-boy view,
which farmers would laugh at."
There are very few 'private' farms in Israel. They are almost all owned
either by large companies or kibbutzim/moshavim (essentially also big
companies now). So I assume they do a cost/benefit analysis. Either they
take the very small risk the land will be bought and they will have to buy
other land with the money, or they lose most of their business by not being
able to sell their produce to the big conglomerates that distribute the
(kosher) produce in Israel.
--
Peace and Blessings,
-Eitan Levy
Tour Guide, Trip Coordinator
www.rabbieitan.com
Phone: +972-50-980-7602
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