Avodah Mailing List

Volume 38: Number 90

Wed, 04 Nov 2020

• 1. Does the issur of tzar baalei chayim (the prohibition against causing pain for animals) apply to non-Jews as well? (Prof. L. Levine)
• 2. [TM] How to Undo A Minhag (Micha Berger)
• 3. Catholic Judges in Capital Cases (Rich, Joel)
• 4. Teaching your child a trade (Alexander Seinfeld)
• 5. Re: Teaching your child a trade (Rich, Joel)
• 6. [TorahWeb] A Great Nation by Rabbi Mordechai Willig (Prof. L. Levine)

From today's OU Kosher Halacha Yomi


Q. Does the issur of tzar baalei chayim (the prohibition against causing pain for animals) apply to non-Jews as well?

A. The Aishel Avrohom ? Butchach (OC 305:13) writes that non-Jews are not
included in this prohibition, since this is not one of the seven Noahide
laws. The Pri Migadim, as well, implies that this prohibition does not
apply to non-Jews. However, Sefer Chasidim (12th Century ? siman 666)
writes that non-Jews are included in this prohibition, since we find that
the angel rebuked Bilaam (who was a non-Jew) for hitting his donkey
(Bamidbar 22:32). Additionally, it can be argued that even if there is no
formal prohibition for a non-Jew, they are nonetheless morally bound not to
mistreat animals. Igeros Moshe (YD 2:130) proves that both Jews and
non-Jews are held accountable for negative midos, even though they are not
formally included in the 613 mitzvos or the 7 Noahide laws.

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See this recent re-post on Torah Musings by RGS. (Originally posted August
2015.) I got caught up enough to decide to share it here just with his
giving a taxonomy of different things that share the name "minhag".

We discussed this topic often enough that I am sure someone else would
appreciate an organized presentation.

Good read!

Tir'u baTov!
-Micha

Torah Musings
How to Undo a Minhag
Posted by: [R] Gil Student in Halachah Musings, Magazine,
Nov 2, [20]20

The term minhag, custom, actually refers to multiple types of practices
with different kinds of obligations. By understanding better these
differences, we can explore which minhagim are subject to removal and
how to accomplish that, if you so wish.

Generally speaking, a minhag is a type of neder, an explicit or
implicit vow to observe a practice. Some nedarim are subject to
annulment through hataras nedarim, a fairly common practice. When can
we do hataras nedarim on a minhag we no longer wish to observe? When
can we stop observing it even without hataras nedarim?

I. Types of Minhagim

There are four types of customs, four scopes of customs and three
sources of customs.

Types:
 1. Legal - You mistakenly thought that a practice is forbidden and
    therefore refrained from it. It isn't an actual law so it is a
    minhag.
 2. Ruling - You had a question and asked your rabbi. While this is a
    matter of debate, he ruled for you. This ruling is your minhag.
    Others might follow another view and have a different minhag.
 3. Pious Practice - You adopt extra practices and stringencies out of
    religious fervor, a desire to do extra.
 4. Fence - Out of concern that you might sin, you erect a safeguard,
    an extra stringency to protect you from sinning. This is your
    personal fence and not a rabbinic enactment. It is your minhag.

Scopes:
 1. Personal - A minhag can be your own personal practice,
    self-tailored to match your personality and inclinations.
 2. Family - Many families gave unique practices that are handed down
    for generations.
 3. Local - While we do not see this too much today, in past
    generations there were unique regional and city minhagim.
 4. Universal - Some minhagim are observed by the entire Jewish people
    (more or less).

Sources:
 1. Self - A minhag can be something that you adopt. You find a
    specific practice meaningful so you start doing it yourself.
 2. Inherited - As is often the case, we are taught minhagim by our
    parents.
 3. Mandated - A third source of minhag is a practice an ancestor
    adopted specifically that his descendants should follow. This has
    halakhic significance.

With all this in mind, let's address when you can remove a minhag. Two
debates are crucial for understanding this topic. Rav Baruch Simon's
recent Imrei Barukh: Tokef Ha-Minhag Ba-Halakhah contains three
chapters (chs. 3-5) that I found very useful in explaining this
subject.

II. Permit Us

The (Babylonian) Talmud (Pesachim 50b) tells the story of Bnei Beishan
who had the minhag of refraining from going to the marketplace on
Friday, in order to ensure proper preparation for Shabbos and avoid any
potential Shabbos violations. They wished to annul this minhag that
they had inherited. Rabbi Yochanan told them that they could not
because Proverbs (1:8) says: "Listen, son, to the rebuke of your father
and do not abandon the teaching of your mother."

The Talmud Yerushalmi (Pesachim 4:1) says that if people observed a
minhag because they thought it was the actual law, then if they ask you
can permit it for them. If they knew it was not required by the
technical law and still observed as an extra measure, then even if they
ask, you cannot permit it for them.

The Talmudim take minhagim seriously. You cannot simply drop a custom
that you don't like. However, there may be ways of removing them.

III. Fences

The Ramban and many others (Rashba, Ra'avad, Rivash,...) understand the
story of Bnei Beishan as teaching that a custom adopted as a fence
cannot be removed. However, other minhagim, that are not intended as
fences, may follow different rules. A pious practice, as described
above, can be annulled through hataras nedarim. The Rosh disagrees,
arguing that even a fence may be permitted. According to the Rosh, Bnei
Beishan could have asked for their minhag to be annulled with hataras
nedarim. Rabbi Yochanan merely told them that, as things stood at the
time, they were bound by the minhag. But they could have gotten out of
it with hataras nedarim.

Significantly, the Shulchan Arukh (Yoreh De'ah 214:1) follows the Rosh,
as do all subsequent standard authorities. However, the Pri Chadash
(Orach Chaim 497, par. 5; followed by Chayei Adam 127:9) writes that,
even according to the Rosh, all or most of the people subject to the
minhag have to annul it. If an individual receives his own (mistaken)
annulment, it doesn't work and he is still bound by the minhag.

Rav Shlomo Luria (Responsa Maharshal, no. 6) adds that a custom can only
be annulled by someone not bound by it. Therefore, a custom universally
practice by Jews cannot be removed. The Shakh (Yoreh De'ah 214:4) follows
this ruling, as does the Pri Chadash (ibid., par. 6), who say that "this
is clear." Therefore, universal Jewish customs can never be annulled.

III. Mistaken Practice

All agree that a practice adopted due to a mistaken understanding is not
binding. For example, if you thought a specific food is forbidden and
therefore refrained from eating it, and later discovered that there is no
basis to consider the food forbidden, you may freely eat that food. The
minhag is not binding. You do not even need to do hataras nedarim.

The Pri Chadash (ibid., par. 2) uses this to explain a rabbi's halakhic
ruling on a controversial subject. If there is a long-standing debate
about a practice and a community follows one specific view, can they
switch to another opinion? Quoting the Maharshdam (Responsa, Yoreh
De'ah 40), the Pri Chadash explains when and why this is allowed. If a
contemporary rabbi proves to his satisfaction that the view the community
follows is incorrect, he has rendered their practice a minhag based on
a mistake that does not even require hataras nedarim.

In other words, if there is a debate between Rashi and Rambam, and the
community's former rabbi had ruled like Rashi, the new rabbi has to prove
that Rambam was right and Rashi wrong in order to uproot the established
ruling. The Pri Chadash adds that few are qualified to weigh in as
equals in such debates. He says that in his times, in the seventeenth
century, only one or two in a generation are capable. (Yes, he invokes
the concept of a gadol ha-dor without using the term.) The Chayei Adam
(127:10) follows this Pri Chadash but only mentions one per generation,
presumably for stylistic and not substantive reasons. [1] Note that the
Chayei Adam includes this ruling in his chapter on kitniyos, which he
did not consider a mistaken custom but a fence.

One of the proofs for this ruling is Chullin 111a. Rav Bar Shva went to
eat at his teacher Rav Nachman's home. Rav Nachman served liver, which
some forbid because of the difficulty in removing blood from the meat.
When house servants or other guests informed Rav Nachman that his
student was refusing to eat the liver, clearly following the strict
view, Rav Nachman instructed them to force the liver down his throat.
Rather than show respect for this alternate view, Rav Nachman took a
stand for leniency because he had decisively ruled that eating liver is
permissible (when prepared properly).

IV. Received Customs

The rules about annulling customs we have discussed so far have generally
referred to the people who initially adopted the customs. If you decide to
fast on every Monday to enhance your spirituality (i.e., a pious minhag)
or as a way to avoid forbidden foods that are more common in your weekly
routine on Monday (i.e., a fence), can you change this practice? Most
minhagim we observe today are received from previous generations.

The Maharshdam (ibid.) argues that you may not annul a received custom.
Only the people who accept a custom may annul it because only they know
the full reason the custom was adopted. Subsequent generations, who
inherit the practice, must follow it. He proves it from Bnei Beishan,
who were not allowed to annul the custom (according to the Ramban et al).

The Pri Chadash (ibid., par. 8) disagrees. He argues that the heir has
the same power as the originator. If the person who accepts a custom can
annul it, so may his descendants. In this, he follows the Rosh (as above)
that Bnei Beishan could have annulled their custom but their question
was whether they must follow it absent annulment.

The Pri To'ar (39:32) takes a middle position. When someone accepts
a practice with the intent that his descendants must follow in his
footsteps, that custom is binding on then. Otherwise, absent that
explicit intent, the custom is a personal stringency that his children
need not follow.

V. Local and Family Customs

Who or what is Beishan? The Pri Chadash (ibid., par. 7) explains that
Beishan is a contraction of Beis She'an (or Beit She'an or Beth She'an),
a city in Israel that still exists. The people of that city, the members
of Beis She'an, approached Rabbi Yochanan about discarding a local
custom. The Pri To'ar (ibid.) disagrees and assumes that Beishan was
a family name. Members of that family asked Rabbi Yochanan about their
family custom.

According to the Pri Chadash a local custom is binding. As long as
you associate with that place, you must follow its customs. The Mishnah
(Pesachim 50a) states that someone who comes from a place with a specific
custom must observe it even if he is spending time elsewhere. The Gemara
(ad loc., 51a) adds that if you move to a place, you become a member of
that city and adopt its customs.

Therefore, if you live in a city with a custom you wish to discard, you
can move to a city with a contrary custom. However, this only works if
the new place has a custom that contradicts the custom of the old place;
the new custom overrides the old one. If you move to a city that has no
standard custom, in which many people with different customs coexist
within one community, then there is no new custom to override the old
custom. You must continue practicing your old custom.

Rav Moshe Feinstein (Iggeros Moshe, Even Ha-Ezer 1:59) writes that
there is no such thing as a local custom in America. Everyone who moves
to America must keep their prior customs. Similarly, Rav Shlomo Zalman
Auerbach (quoted in R. Yerachmiel Fried, Yom Tov Sheini Ke-Hilkhaso 19:5)
rules similarly that Jerusalem has no single custom and no one who moves
there may change his customs, except for a few unique customs accepted
by all the communities there.

However, according to the Pri To'ar, there is also a concept of a family
custom. Even if you move to a place with an established custom, you still
have to follow your family customs. Rav Yosef Shalom Elyashiv rules this
way. [52] Rav Hershel Schachter ("Hashbei'a Hishbi'a" in Beis Yitzchak 39,
2007) explains that some customs are family-based and some locale-based,
although they are not always easy to differentiate. You must follow a
family custom even if you move to a place that has a different custom. He
adds that if you change families, you change family customs. One example
is a woman who marries and, generally speaking, adopts the customs of
her husband's family. However, sometimes a man with little knowledge of
his lineage (e.g. a ba'al teshuvah) marries a woman of prominent lineage
and adopts her family's customs.

VI. Undoing a Custom

In summary, you can discard a custom if:
 1. It falls into the category of a mistaken custom 2. It is based on
    a prior halakhic ruling and one of the unique Torah scholars of the
    generation ruled against this practice
 3. All (or most) of the people subject to the custom formally annul it
    (which is not possible with a universal custom)
 4. You move to a place with a contrary custom, except for family
    customs
 5. You change families

--


kitniyos, which he did not consider a mistaken custom but a fence. As we
discussed elsewhere <https://www.torahmusings.com/2009/04/kitniyos-ii>,
even Rav Ya'akov Emden, the most authoritative view against kitniyos,
believed it is a binding custom.

2. As quoted in R. Moshe Fried, Responsa Va-Yishma Moshe, pp.
267-268; Sefer He'aros Al Masekhes Pesachim, p. 293, both cited by R.
Baruch Simon, ibid., p. 71

Catholic Judges in Capital Cases
Amy Coney Barrett, Notre Dame Law School
John H. Garvey
Whole thing is here https://scholarship.law.nd.edu/law_faculty_scholarship/527/

I found the statements below particularly interesting and would love to discuss parallels with our thought:

CATHOLIC JUDGES IN CAPITAL CASES
     To anticipate our conclusion just briefly, we believe that Catholic
     judges (if they are faithful to the teaching of their church) are
     morally precluded from enforcing the death penalty. This means that
     they can neither themselves sentence criminals to death nor enforce
     jury recommendations of death. Whether they may affirm lower court
     orders of either kind is a question we have the most difficulty in
     resolving.
- - - - - - - - -
     In Catholic moral theology, there is an extensive literature on this
     subject, usually collected under the heading of cooperation with evil.
     Stated abstractly, these are cases where one person ("the cooperator")
     gives physical or moral assistance to another person ("the wrongdoer")
     who is doing some immoral action. In judging the morality of the
     cooperator's action, the most important distinction the Church draws
     is between what it calls formal and material cooperation. Here is a
     simile to help lawyers think about the distinction. In first amendment
     law there are two "tracks" for judging government actions that sin
     against the freedom of speech. Track one is for cases where the
     government acts with a bad intention-where it restricts speech because
     it does not like what is being said. (Imagine a law forbidding people
     to make jokes about the Vice President.) This kind of action is almost
     always unconstitutional. Track two is for cases where the government
     restricts speech unintenti
 onally, in the course of doing something else. (Imagine a law against
 littering applied to a politician distributing handbills.) This kind of
 action is sometimes unconstitutional and sometimes not. The courts will
 balance the law's good effects against its impact on speech.
- - - - - - - - -
     Implicit in the Chief Justice's observation are two reasons why we
     should not automatically disqualify judges for holding such views or
     convictions. One is that everyone has them. If we applied this
     criterion faithfully we would disqualify the entire judiciary. The
     rule of necessity that allows judges to sit on cases about judicial
     compensation applies here too: better a flawed judge than no judge at
     all. The second is that the possession of convictions is not only
     inevitable, it is to some extent desirable.

KT
Joel Rich

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Does this mitzvah apply to a father who has enough wealth that his child
will never need to work?
In other words, is the reason for the mitzvah so that the child may live, or
is the reason so that the child (who is not a lamdan, let?s say for the sake
of discussion) will have something meaningful to do?


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Does this mitzvah apply to a father who has enough wealth that his child will never need to work?
In other words, is the reason for the mitzvah so that the child may live,
or is the reason so that the child (who is not a lamdan, let's say for the
sake of discussion) will have something meaningful to do?
============================================
1. kiddushin 239 a/b seems to imply not  IF you could be sure the$ would
last for life (so never would have to steal) - which imho can't guarantee. 
 And all the exceptions discussed seem to be for full time learnin
2.psulei eidut sanhedrin 24b include dice players - r sheishet says because not involved in yishuvo shel olam.  A good father will consider this imho

Kt
Joel rich
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From  http://www.torahweb.org/torah/2020/parsha/rwil_lechlecha.html
[The TorahWeb Devar Torah for Lekh-Likha 5781, "A Great Nation" by R
Mordechai Willig. -mb]

> The COVID-19 pandemic has affected the Orthodox Jewish community
> disproportionately. All of the blessings of "I will make you a great
> nation" have been affected. The sheer number of fatalities, r"l, has
> quantitatively reduced our great nation. Of course, each loss is a
> terrible tragedy for the deceased and the close family and friends. But
> the cumulative losses in the Orthodox community have been devastating.

> Our reputation as a wise and understanding nation has been
> tarnished. Despite staggering numbers of mortality and morbidity,
> and notwithstanding repeated warnings and predictions that have come
> true, appropriate precautions are often ignored. Nearly all physicians,
> including numerous Orthodox doctors, agree that masks and social distance
> reduce risk of transmission. In many if not most circumstances, lack
> of precaution adds danger. It is not only unscientific, it is against
> the halachic requirement to avoid danger whenever possible. The dozens
> of recent Covid-19 funerals across the spectrum of Orthodoxy, in the US
> and Eretz Yisrael, should lead to universal compliance. The failure to
> wear masks and to distance is a perplexing case of cognitive dissonance,
> unbefitting a wise and understanding nation.

See the above URL for the rest of the article.

Those in the Orthodox community who do not follow the guidelines of
the authorities have indeed led to a diminution of how the world views
observant Jews.

YL


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