Avodah Mailing List

Volume 38: Number 45

Fri, 05 Jun 2020

• 1. Re: free public transport on Shabbos/Yomtov (Akiva Miller)
• 2. Eruv Tavshilin - Shavuos Erev Shabbos (Chana Luntz)
• 3. Re: Street Minyanim/sh'as hadchak (Micha Berger)
• 4. Street Minyanim/sh'as hadchak (Chana Luntz)
• 5. Wind Blows off Yarmulka While davening (Prof. L. Levine)
• 6. FW: sakanta/issura (Rich, Joel)

.
R' Zev Sero wrote

> In the current situation all NYC buses are free, since the
> front of the bus is closed to protect the driver, and all
> boarding is from the rear.
> In some cities there are free buses or streetcars on a regular
> basis. For instance in Pittsburgh all buses within the center
> of the city are free.
> In all these cases, is there any problem with using these
> services on Shabbos or Yomtov?
  (For those buses that only
> stop if someone is waiting at the stop or if a passenger has
> signalled a request to get off, assume that one boards only
> at a stop where someone is already waiting, and gets off
> only when someone has already requested a stop.)

You seem to presume that the main/only problem is paying, or the maaris
ayin that others might think I paid for the ride. To me, a much bigger
problem is defining the line between which vehicles are so large and strong
that my weight is negligible and does not cause the vehicle to do more
melacha, versus those vehicles which are smaller and my weight *does* cause
the vehicle to work harder.

I don't know that any real line exists at all between those two categories,
and my feeling is that they should all be assur. But I'm just a layman.
Even among poskim who do/would draw such a line, surely it is a matter of
shikul hadaas, of perception and feeling what level constitutes
"negligible", no? And if so, we have a serious maaris ayin problem, because
onlookers may not realize that this particular vehicle is on the "okay"
side of that line. If buses and trains are on one side, and automobiles and
elevators are on the other, where does that leave the van, the minivan and
the tram (or streetcar)?

> Further, assuming that there is no problem, suppose one
> boards within an eruv, and gets off also within an eruv, but
> the two eruvin don't touch each other.  Obviously one may
> carry on to the bus, and one may carry on the bus, but may
> one carry off the bus what one brought on board, and carry
> it around in the second eruv?

My first thought was to compare this to one who is carrying from a
reshus harabim to mekom petur, and then from that mekom petur to further on
in the reshus harabim. That's assur, but RZS's scenario could be several
levels of d'rabbanan down, especially if the two eruvin *do* touch each
other.

But then I realized that it might be assur even to bring the object onto
the bus to begin with. If one knows that the bus will bring the object
outside the eruv, is that any better than placing a ball on the ground, on
a hill, in a manner where the ball will definitely roll out of the eruv?

Akiva Miller
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On 28/5/20 3:14 pm, Micha Berger via Avodah wrote:
> I am pretty sure we discussed this in the past, but I couldn't find it 
> in the archive.
> 
> Today's eruv tavshilin is a rarity as Friday is Yom Tov mideOraisa. We 
> are permitting hakhanah on YT deOraisa for Shabbos.
> 
> I was wondering how eruv tavshilin works in this case. Why isn't it 
> ha'aramah?


And RZS replied:

<<There are two opinions in the gemara on why Eruv Tavshilin was instituted
in the first place: Lichvod Shabbos or Lichvod Yomtov.

The first opinion is that it is indeed a ha'arama, and before the takana we
simply did the ha'arama openly and that was how we prepared for Shabbos.
The chachamim never forbade it, because how else could we prepare?  But then
the chachamim got concerned that this was an insult to Shabbos; we were
officially saying that Shabbos was a day when we were planning to eat only
leftovers.  So they decided  require us to prepare at least one thing
especially for Shabbos, and if we didn't do that we would no longer be
allowed to use the ha'arama.

The second opinion is that on the contrary, before the takana we didn't need
any ha'arama.  It was simply permitted to openly prepare on Yomtov for
Shabbos.  But the chachamim got concerned that this was an insult to Yomtov,
so they said no more, we must now use a ha'arama, and in order to make the
ha'arama plausible we must make an eruv and pretend that is all we plan to
eat on Shabbos, just to save Yomtov's face.

On the first view the ha'arama is permitted as a sort of bediavad, for lack
of any other alternative.  On the second view, on the contrary, the ha'arama
itself is the takana, i.e. we're only pretending to use a ha'amara when
me'ikar hadin we don't even need one.>>

I would have started from a different place than RZS in answering this, but
RZS got in first.  RZS is, I believe, starting with the machlokus between
Rava and Rav Ashi on Beitza 15b.  I would have started with the machlokus
between Raba and Rav Chisda on Pesachim 46b as to why it is that one can,
d'orisa, prepare from Yom Tov to Shabbas.  Erev Tavshilin is rabbinic
(despite the gemora on 16b that precedes the machlokus between Rava and Rav
Ashi quotes a pasuk, but it is an asmachta, as is the later pasuk also
quoted).  Raba holds that we can prepare for Shabbas on Yom Tov on a d'orisa
level because of hoiel  - since guests might come (and consume the food on
yom tov).  Rav Chisda holds that there was never any problem preparing from
yom tov for Shabbas, the only reason that the rabbis instituted an eruv
tavshilin is because preparing on yom tov for chol is an issur d'orisa, so
the rabbis banned preparing from yom tov for shabbas without an eruv
tavshilin, to make sure that nobody would prepare from yom tov for chol.

So as Rav Chisda understands it, eruv tavshilin is not a h'arama at all.
It's a heker (this is specific in the gemora in Pesachim). Every time you
think about the fact that you needed an eruv tavshilin to cook for shabbas,
it reminds you that you can only do this for shabbas, and not for chol.  For
Raba it is a little more complicated as to why you need to ban cooking for
shabbas, and institute an eruv tavshilin, but again it is not really about
harama (and this, I think is where RZS's discussion comes in).

In response to 

RLL who wrote:
> Question:? In many communities there is more than one local rabbi.? If 
> one relied on one in a given year,? and then forgot to make an Eruv 
> Tavshilim the next year, can one then rely on another for this second
year?

I think the key issue is to understand why one might not be able to rely on
the local rabbi's eruv two year's running (which in turn is based on a story
in the gemora about a blind man and Shmuel on Beitza 16b).   And about this
there is a machlokus rishonim.  Rashi and the Rashba explain the reason the
blind man could not rely on Shmuel's eruv the second year, as being because
Shmuel only intended his eruv to be relied upon by those people who had a
legitimate reason to not have made their own eruv.  Forgetting once was one
thing, but not making one twice in a row indicated that somebody was not
careful about mitzvos d'rabbanan, and he had no intention of exempting those
people who were sufficiently cavalier as to fall into this category (along
with those who deliberately had not made their own eruv, as required by
Chazal, so as to rely instead on that of the local rav), who were also not
covered.  On that basis, the question is whether the local Rav (or rabbaim)
intended to include the negligent in their eruv.  If the relevant Rav did
so, then someone could rely on his eruv two years running, whether there was
one or many.   If he did not, like Shmuel, then he can only be relied upon
the first time, when the person who failed to make his own eruv would not be
considered negligent (and that does not give him the option to rely on
anybody else the second year, so long as that person also did not intend to
exempt the negligent).

If however you follow the Rosh and the Tur, then the issue is that the
mitzvah is on a person to make his own eruv, and the local Rav is there as a
backup in situations where a person cannot himself make, but if he could,
and didn't, then that of the local Rav will not work, period.  So the issue
seems to focus on the extent to which the person really could not have made
two years running.  If there really were extenuating circumstances (which
might include forgetting, but also not being knowledgeable enough to make an
eruv) then there is no reason a person cannot rely on the local Rav twice
running.  And if there are no real extenuating circumstances, and somebody
is just too lazy to make and eruv, then he cannot rely on the local Rav's
eruv even the first year.

Then there is the view of the Ran, that the key is whether or not the person
in intending to make his own eruv (and then failing to do so), was in fact
thereby excluding relying on that of the local Rav (the point being that the
blind man was sad two years running - the first time because he failed to
make an eruv, and Shmuel said, so rely on mine.  But then he was sad again
the second year, when he should have known he could have relied on Shmuel's,
and that showed he had no intention of relying on Shmuel's, and Shmuel did
not make an eruv for those who had no intention of relying on it).  On this
basis so long as the person had no objection to relying on the local Rav's
two years running, then he could.

Note that the Mishna Brura Siman 527 si'if katan 26 rules that, because of
simchas yom tov, bideved even one who forgot many times can rely on those
poskim who holds that one can rely on the local Rav many times (even though
clearly this is not an ideal situation, and one ought to be trying to fulfil
the mitzvah of making oneself).

So I don't think that having one or more than one Rav in town actually makes
a difference (except that perhaps one Rav might specifically intend to
include the negligent, and another might perhaps not, which could affect the
din according to Rashi and the Rashba).  

Regards

Chana

On Mon, May 25, 2020 at 12:38:34AM +0100, Chana Luntz via Avodah wrote:
> As mentioned the Rema is quoting the Rashba which is found in Shut HaRashba
> Chelek 1 siman 253 where he sets out rules of poskening, and says:
> 
> "that we do not say it is appropriate to rely on ploni in a time when there
> is one who is greater than him in wisdom and number.  And the halacha pesuka
> [CL: is this not the same as ikar hadin?] is that they go after the one
> greatest in wisdom and number....

I would think that halakhah pesuqah is in contrast to ikar hadin.
Iqar hadin is the theoretical what the law requires.
Halakhah pesuqah is a pragmatic application of the law.

It's going to include policy and slippery slope considerations, (and in
the other direction) considerations of significant communal need, etc...
so many factors that separate theory from practice.

(You know the difference between theory and practice? In theory, there
would be no difference...)


> And he goes on to discuss the question of giving honour to a Rav in his
> place (like Rabbi Yosi hasGalili where they ate chicken with milk, and Rabbi
> Eliezer where they cut the trees to make the knives on shabbas for the
> bris)...

On a different topic, I find it interesting that the Rama focused on the
authority of the rav/rabbanim giving the pesaq, and does not mention
the poseiq using his own shiqul hada'as to assess the merits of each
argument.

There is a crossover here to the discussion about the Litvish innovation
of pesaq. (My disagreement with including the AhS in that list is another
conversation.)


...
> Or you can understand that demai is assur (rabbinically), but when the
> rabbis banned demai, they allowed for sh'as hadchak situations, of which
> being an oni is one of them, and that pushed aside the ikar halacha that
> demai Is assur.

If she'as hadechaq only has impact on a din derabbanan, we could perhaps
view the rule as akin to "bemaqom peseida lo gazru rabbanan", or
"bemaqom tza'ar..." or "mipenei kavod haberios lo gazru rabbanan".

Tir'u baTov!
-Micha

-- 
Micha Berger                 Problems are not stop signs,
http://www.aishdas.org/asp   they are guidelines.
Author: Widen Your Tent              - Robert H. Schuller
- https://amzn.to/2JRxnDF

I wrote:
> As mentioned the Rema is quoting the Rashba which is found in Shut 
> HaRashba Chelek 1 siman 253 where he sets out rules of poskening, and
says:
> 
> "that we do not say it is appropriate to rely on ploni in a time when 
> there is one who is greater than him in wisdom and number.  And the 
> halacha pesuka
> [CL: is this not the same as ikar hadin?] is that they go after the 
> one greatest in wisdom and number....

And RMB replied:

<<I would think that halakhah pesuqah is in contrast to ikar hadin.
Iqar hadin is the theoretical what the law requires.
Halakhah pesuqah is a pragmatic application of the law.

It's going to include policy and slippery slope considerations, (and in the
other direction) considerations of significant communal need, etc...
so many factors that separate theory from practice.

(You know the difference between theory and practice? In theory, there would
be no difference...)>>

But it seems clear from the above that the Rema is using halacha pesukah the
way you have explained ikar hadin.  That is, the theoretical what the law
requires, without the policy and slippery slope considerations.  Because
what does he describe as halacha pesukah ... "that they go after the one
greatest in wisdom and number".

This is the language of the Rashba (that he is summarising) Shut HaRashba
Chelek 1 siman 253 :

???? ?? ??????? ??????? ???? ??? ?? ??????? ???? ?? ????. ???? ???? ???? ??
???? ??????? ???? ?? ???? ??? ????. ?? ???? ???? ???? ????? ?????? ???? ???
?? ?????? ????? ??? ?????? ??? ????. ??? ????? ???? ??? ???? ?? ???? ??????.
??? ???? ?????? ??? ?????? ???? ??? ?????? ???????? ???? ?????? ?????? ???
???? ??????? ???? ??? ??? ?????? ??? (?? ?). ??? ????? ?? ???? ??? ????
????. [proof text from Hoshea omitted]. ??? ?? ??? ?? ??? ?????? ????? ??
?????? ??? ?????.


That not all poskim and chachamim are equal, and not all places are equal
from the law.  How do we rule the din if there are two  poskim where one
forbids and one permits.  If we know that one is greater in wisdom and
number, and it goes out his name so we go after him whether for stringency
or leniency.  If there are two that are equal and we do not know which one
is greater of the two of them.  For Torah we go after the stringent one that
it is like a safek d?orisa and of the rabbis we go after the lenient one and
like it says at the beginning of the first perek of Avodah Zara (7).  And
one who relies on the lenient one when it is from the Torah sins.  [proof
text from Hoshea omitted].  But if there is one Rav in his place, and he
teaches them they go after his words.

That is the ikar hadin as you have defined it (it ultimately stems, from
achrei harabim l'hatos). The question of  bideveds and sh'as hadchak then
comes in to deal with other aspects, including and famine times and such.

> And he goes on to discuss the question of giving honour to a Rav in 
> his place (like Rabbi Yosi hasGalili where they ate chicken with milk, 
> and Rabbi Eliezer where they cut the trees to make the knives on 
> shabbas for the bris)...

RMB further writes:

<<On a different topic, I find it interesting that the Rama focused on the
authority of the rav/rabbanim giving the pesaq, and does not mention the
poseiq using his own shiqul hada'as to assess the merits of each argument.

There is a crossover here to the discussion about the Litvish innovation of
pesaq. (My disagreement with including the AhS in that list is another
conversation.)>>

You are looking in the wrong place.  Where you need to look is the Rema's
introduction to his commentary on the Shulchan Aruch.  Here he is doing what
he says he will do in gathering together comments from various authorities
and bringing them where he feels the Mechaber has not included what the Rema
felt he needs to include.

Hence he says:

???? ??, ????? ??? ??? ??? ???? ?' (?) ?? ???? ????? ???? ??? ??? ???????
???, ??? ???? ????? ?????? ??? ?? ?????? ??????, ?? ??? ???? ?"? [???????
?"? ?"?] ??? ????? ?? ?????? ..., ?"? ?? ???? ???? ????? ??"? ????? ?????
??? ???"? ?????"? ????? ???? ???????? ?????? ?????, ??"? ?? ?????? ??????
???? ????? ????? ????? ?????? ??? ???? ?????? ??????? ??? ?????, ??? ???????
????????? ???? ????? ??? ??? ??? ???? ?????? ????? ??? ???? ?????, ??? ????
???? ??????? ????"? ???"? ????"? ?????? ?????? ??? ???? ???? ?? ???? ????'
????? ???? ??? ??? ???? ?????,... 
???? ????? ?? ????? ????? ???? ?????? ??? ??? ??? ??????, ?????? ????????
????? ????? ????? ??? ??????, ???? ????? ?? ????? ???????, ..
?, ?? ?? ????? ????? ??? ???????? ?? ??????? ??? ??? ????? ?? ?????, ????,
??? ????? ???????? ??? ???? ????? ??? ?????? ??????, ???? ???? ?????? ????
????? ?????? ?????? ??????? ?????, ??? ????, ????? ????. ??? ?? ???? ??????
??????? ???? ??? ??? ?? ???? ????? ???? ?? ????? ?????? ????? ????? ???
????, ?"? ????? ????? ????? ?????? ????, ?? ???? ?? ???? ????? ??????
??????? ????. ??? ?? ?????? ????? ????? ????? ???????? ??? ?????? ???????
??? ??? ??? ???? ??? ????? ??????, ?? ??? ???? ?????? ?????? ????? ?? ????
?? ?????? ?? ???? ???? ??????, ????? ???"? ??? ???? ??????? ?????? ??????,
??? ?????? ?????? ?????? ?????? ?? ????? ??????, ?????? ????? ??? ??? ???
???? ???  ??? ??? ?? ??? ????? ????? ??????? ???????? ????? ??? ????? ??
?????, ??? ??? ???? ?????? ?? ?? ???? ?? ?????,

And without this [CL the Rema?s commentary or tablecloth], the table which
he [Rav Yosef Karo] has arranged before G-d will not be given yet to the
people who are in our lands, as the majority of the customs of these lands
do not conform with it, because already they say [Eruvin 27a] we do not
learn from general rules..., all the more so from a general rule that the
aforementioned Gaon [Rav Yosef Karo] has created by himself to hold like the
Rif and the Rambam in a place where the majority of the later commentators
disagree with them, and by way of this has set out in his books many matters
that are not according to the halacha according to the words of the Sages
from whose waters we drink, the famous poskim amongst the people of Ashkenaz
that they have always been our guides and we have followed them from
earliest times, and these are the Or Zarua, the Morderchai, the Ashri, the
SMaG, the SMaK and the Hagahot Maimoniot which all of them are built on the
words of the Tosfot and the Sages of France which we are their children?s
children...
And I see all his words in the Shuchan Aruch [risk being treated] like those
which we were given from the mouth of Moshe from the mouth of the Almighty,
and that the students who will come after him will drink his words without
dispute, and in this they will conceal all the customs of our lands ?.  
And therefore I saw to write the opinion of the later commentators in the
places where it seemed to me that his words were not correct, at the side,
in order to awaken to the students in every place that they should know that
there is disagreement with his words, and in every place that I know that
the custom  is not like his words I will investigate and I will write, and
this is the custom, and I will put it at the side, even though my words are
closed and sealed [i.e. the reasons and proofs for these positions have not
been given] and are not arranged like the words of the Gaon where all his
words [i.e. proofs and reasons] are found in his book the Beis Yosef, in any
event I went in my way to write the words simply [CL: i.e. without reason or
proof], because for the majority I know  they can be found in his book [ie
in the Beit Yosef] and one who will investigate will find them.  And those
that are not found in his book can be derived from the works of the later
commentators which are spread out in our lands one here and one there, and
it will be found with difficulty, that with some trouble I have gathered and
when I have written my own opinion I write ?so it seems to me? to make known
that from me goes forth the words.  And I hope with the help of G-d that
also a lengthy version will be spread out in Israel, and there will be
included many bundles and many parcels of proofs and reasons, in every
matter according to my ability, and one who has the ability to engage in
halachic reasoning will discern the reasons by himself, and he will not rely
on others, and one who has not reached this level will not move from the
custom ...

From this it seems to me that the Rema saw his role as threefold:
a) firstly to bring the actual customs of the Ashkenazim within the world of
the Shulchan Aruch (for while Shulchan Aruch is translated as ?prepared
table?, it would not be a table prepared for Ashkenazim if it deviated
significantly from what they in fact practiced);
 b) secondly to bring the words of Rishonim that Rav Yosef Karo effectively
ignored by paskening only from the Rif, the Rambam and the Rosh.  And while
in this context  the Rema mentions the Or Zarua, the Morderchai, the Ashri,
the SMaG, the SMaK and the Hagahot Maimoniot, presumably here in Choshen
Mishpat he felt Rav Yosef Karo had not adequately provided for the Rashba;
and
c) thirdly to make sure that students of halacha don't think that what the
Shulchan Aruch writes is like halacha Moshe MiSinai, without understanding
that there are many disputes about it, so that, if they are at the level
they are able to do it, they will engage in their own halachic analysis of
the proofs and reasons, while if not they will know the custom in Ashkenaz
to rely on.

But of course just because that is how the Rema saw his own commentary, that
does not mean that everybody agrees with this.  Rabbi Akiva Eiger in
particular (see eg Rabbi Akiva Eiger Ketubot 9b) holds that "we do not have
the power even by way of questions and pilpulim without number to determine
against the Rema, but we need to bend ourselves to receive his opinion".

However it does mean that built into the whole Ashkenazi psak structure is
this introduction of the Rema, and the original intent of his commentary.
And it is what allows the Chazon Ish to say, for example (Chazon Ish
Shevi?it siman 23 letter 5): 

??? ??? ??"? ??? ?????? ?????? ?"? ????? ???????? ?? ??? ???"? ??? ??"? ??"?
???"? ??? ??? ?????? ?????? ????? ?? ??????? ?"? ?? ??? ???"? ???? ???"?
????, ...

? and so after the Shulchan Aruch we are accustomed to rule according to the
great ones amongst the achronim even against the Shulchan Aruch like the
Shach, the Pri Chadash, the Gra, and so we rely in specific matters on
achronim even against the Shulchan Aruch like the Nodeh B?yehuda and others
?

However Rav Ovadiah modifies this as follows (Shut Yabia  Omer Chelek 5
Orech Chaim Divrei Peticha) where he says:
?that in the Chazon Ish (Mas?arot Siman 13 letter 1) he writes that we do
not accept the words of the Shulchan Aruch and the Rema except when the
matter has been weighed, and the matter cannot been decided by way of
proofs, but if there should be proofs in the achronim against the Shulchan
Aruch there is to rely on the achronim ?

However this is not in my (new) version of the Chazon Ish in any place I
have tried to look (I gather that this is a reference to the original
edition, which I do not have, and that they completely rearranged the topics
and simanim in the newer editions) - if anybody has a pdf of the original
version, they could show me, so I do not have to rely on Rav Ovadiah as a
secondary source, that would be much appreciated (and/or if anybody could
point me to where this piece is in the newer version).

And even given that flexibility, it doesn't say whether to rely on achronim,
as the Chazon Ish suggests, or go back to the original rishonim (which is no
doubt what the Rema had in mind).  
...
> Or you can understand that demai is assur (rabbinically), but when the 
> rabbis banned demai, they allowed for sh'as hadchak situations, of 
> which being an oni is one of them, and that pushed aside the ikar 
> halacha that demai Is assur.

<<If she'as hadechaq only has impact on a din derabbanan, we could perhaps
view the rule as akin to "bemaqom peseida lo gazru rabbanan", or "bemaqom
tza'ar..." or "mipenei kavod haberios lo gazru rabbanan".>>

Yes, that is exactly what I have been saying.  The question is, is it only
d'rabbanan.  The Shach certainly thinks so, and the piskei teshuva, but it
would seem that the Rashba (and hence perhaps the Rema, in bringing this
Rashba) holds that where there is also a hefsed meruba, it can operate even
in a d'orisa context, or at least so holds the Bach.

>-Micha

Regards

Chana

From today's OU Kosher Halacha Yomis


Q. I am davening Shemoneh Esrei outside and the wind blew off my yarmulke. Is it better to walk over and pick it up or to motion to someone to bring it to me?


A. Ordinarily, during Shemoneh Esrei, both walking and signaling to others
are forbidden. However, if there is a pressing need, it is clear from the
following Mishnah Berurah (104:1) that motioning is preferable rather than
walking. The Mishnah Berurah writes that if a child is disrupting one?s
tefillah, the first choice is to signal to him to be quiet. If this does
not help, one should walk away from the child and continue davening in a
different room. Poskim write that if the child is also bothering others,
you may pick up the child and carry him into a different room. (In all
cases one may not talk. Talking during Shemoneh Esrei is considered a
hefsek [an interruption] and will invalidate the tefillah.) In any event,
signaling is a better solution than walking. Therefore, in the case of the
yarmulke, if possible, one should signal without talking rather than
walking to pick up the yarmulke.

------------------------------------------------------------------------------------------------
Perhaps the response should have suggested that at least while davening outside one should wear a hat!!!

YL
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The Chatam Sofer (Chulin 9b) says that it's pashut why sakanta is different
from issura since by issura its hkb"h who made the rules so if he said we
can rely on rov it's fine whereas by sakanta even a minority  endangered
can't be brought back from the dead.


So:
1. How does this square with strong form of timtum haleiv?
2. How do you explain to amcha the difference between halachic reality and reality reality?
3. Why is spiritual danger treated as less concerning than physical?
4. How do we define sakanah (as in leidat hasafeik?) and who defines it? Is
it based on the individual's perception or is it based on the community's?
This is a subset of a greater question which I've never gotten my arms
around -  when do we set standards based on the individual when we based on
the community?(For example, by Yom Kippur the definition of the minimal
measurement for drinking is based on the individual but for eating it's an
objective standard (Chazal understood inuy was physically different for
eating and drinking based on....))

KT
Joel Rich

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