I always found this topic to be mysterious and unexplained, so let's see if we can make heads of this.
a) the nature of the prohibition is not to make the hair "rounded". it would seem from that, that if one leave even "some hair" he isn't transgressing the isuur. i found that this is a discussion and there is an opinion that holds this way.
b) the length of the פאה is a dispute amongst the rishonim. the language of the שלחן ערוך is:
שיעור הפאה מכנגד שער שעל פדחתו ועד למטה מן האוזן מקום שהלחי התחתון יוצא ומתפרד שם וכל רוחב מקום זה לא תגע בו יד
there seem to be many opinions how to interpret these words (which are quoted in Biur Hakacha 251). There are those that say he means until the end of the ear, meaning at least till the beginning of the אליה (the soft skin at the end of the ear). In my humble opinion, it sounds more like those who interpret to be the middle of the ear, where the 2 jaws connect and he means till the end of the top jaw and before the beginning of the bottom jaw. to feel this, open your jaw really wide (preferably when no one is watching) and put your finger at the junction. According to this "למטה מן האוזן" would mean, under the hearing canal.
c) the width of the פאה (a.k.a - the "boot"). another thing i never got was, how far into the face - width wise- is one not allowed to shave. you see people having 60's type boots, so what's with that?
perhaps, it also is connected to the junction of the 2 jaws, and when the law states וכל רוחב מקום זה לא תגע בו יד he is referring back to the junction and is describing the width not the length (as some people understand). in which case, i refer you to the diagram of the skull @ http://www.besthealth.com/besthealth/bodyguide/reftext/images/CranialBones.jpg
you will see that the bone structure of the junction of the 2 jaws end right above the beginning of the back teeth. so in my opinion, this is how far into the face one needs to go.
d) finally, and perhaps most importantly, what are or aren't you allowed to do in the place of the פאה?
We are מחמיר not to even use מספריים כעין תער like our tosfos says. see my comment on the shavers post, where i quoted the כתב סופר that you aren't allowed to cut the hair even with scissors if its very close to the face (unlike by the beard which it is allowed), and מעיקר הדין all you need to grow is "something" of hair, but the minhag is to grow each hair to be long enough to be able to fold. i will not go into other minhagim of peos (although i was surprised to find that some are AGAINST very long peos from a kabalystic point of view). So if you ever see a guy with a completely shaved (with a trimmer) head, know that he is "only" transgressing a minhag...
would love to hear comments on this.
Wednesday, April 30, 2008
Reish Lakish says that aseh pushing off a lo ta'aseh only applies when it is impossible to fulfill both, but if it is possible to fulfill both then aseh does not push off the lo ta'aseh. There is a big machlokes (starts with a Rabbeinu Yerucham and Beis Yosef in Hilchos tzitzis - i discussed it at length in my sefer) regarding situations where there isn't an inherent contradiction but the circumstances are such where the individual cannot fulfill the aseh unless he would violate the lo ta'aseh. There is a strong raya from the gemara in shabbos 133a that whenever the situation makes it impossible to fulfill both, one is allowed to push off the lo ta'aseh to fulfill the aseh, even though there isn't an inherent contradiction between the two. However the gemara here strongly implies the opposite. The gemara says that from the fact that we need "zekano" to teach that one violates giluach hazakan for the mitzvah of metzorah, indicates that metzora is b'ta'ar. The gemara suggests that maybe the metzorah can fulfill his mitzvah without a ta'ar but he has the right to choose a ta'ar. The gemara pushes that off based on Reish Lakish, that if it would be possible to reconcile the l'av of giluach hazakan with the shaving of metzorah, we would never darshen "zekano" to permit a metzorah to shave with a razor, therefore from the fact that we do darshen "zekano" to permit shaving with a razor the giluach of metzorah must be with a razor. The difficulty with this gemara is that perhaps a metzorah can fulfill his mitzvah even through plucking with a tweezers, but if he doesn't have tweezers and only has a ta'ar we need the pasuk to permit him to violate the issur of giluach hazakan. From the fact that the gemara doesn't entertain this possibility implies that Reish Lakish's rule that if it would be possible to fulfill both, we would not darshen "zekano" to be matir giluach hazakan with a ta'ar, would include even a case where an individual is in a situation where he can't fulfill both. Meaning, whenever there isn't an inherent contradiction where the lo ta'aseh prevents the fulfillment of the aseh, just a circumstantial contradiction (such as one who has only a razor and not tweezers), it is still considered "efshar l'kayem shneyhem" so that the aseh doesn't push off the lo ta'aseh (and we would not darshen "zekano" to be matir giluach).
To reconcile the gemara in shabbos with this very solid proof, see the tiferes yosef in the back of the gemara on nazir for an extremely lomdush approach to that gemara about milah b'tzara'as.
Apologies for slacking off on the blog - I hope to be more consistent not that Yom Tov is over.
From the gemaras explanation of the type of shaving that is prohibited based on the issur of gilu'ach hazakan, there is an indication that electric shavers would be a problem. The gemara seems to say that to be assur it must fulfill 2 criteria: 1. "giluach" - to the exclusion of plucking hairs. 2. "hashchasah" - to the exclusion of a standard scissor action which leaves behind hair. Based on this one can certainly argue that an electric shaver which gives a very close shave (the shiur of remaining hair would presumably be like by nazir "k'dei la'chuf") qualifies not only as "giluach" (which is clear from the gemara that scissors qualify as giluach), but also as "hashchasa".
However, upon a broader perspective of the sugya it seems that our sugya is a good source to permit electric shavers as klal yisroel is clearly noheig. The mishna (negaim) qutoed by the gemara 40a says that Nazir, Metzorah and levi'im all have a mitzvah of giluach with a "razor". This statement is not a description of the type of shaving but is a requirement of a ta'ar - razor as is apparent from Tosafos explanation of the gemara [Tosafos explains that when the gemara comments on R' chisda's statement "u'bta'ar", which the gemara explains doesn't mean ta'ar, but rather k'ein ta'ar, is going back on the statement of malkus. But for the mitzvah of giluach by nazir, metzorah and levi'im we require an actual ta'ar - razor]. Now, the gemara makes it clear that the same form of giluach that would violate the issur of pe'os hazakan, is the type of giluach that a metzorah must do for the mitzvas giluach [from the fact that we need a pasuk of "zekano"]. If the issur of pe'os hazakan can be violated through a scissors so long as it accomplished a hashchasa of k'ein ta'ar, then a mezorah should also be able to do his giluach with a scissors and not require a ta'ar which is against the mishna. Therefore, based on the mishna that a meztorah needs giluach davka with a ta'ar, the issur of pe'os hazakan must only be violated with a ta'ar, not a scissors.
Based on this approach, the gemara which says that giluach + hashchasah would constitute a violation of pe'os harosh, does not mean to include scissors that give a close enough cut to qualify as hashchasa. Rather the gemara means to say that the only type of giluach which you are chayev for is a giluach action that will always result in hashchasa, namely shaving with a razor, to the exclusion of a scissor action that will not always result in hashchasa. Therefore, anytime the action of cutting is done by the blade rubbing against the screen of the shaver rather than against your skin, constitutes a scissor action and is not a violation of pe'os hazakan.
Wednesday, April 23, 2008
The gemara and Tosafos try to juggle the concept of heter mitztaref l'issur (hml) and Kezayis b'kdei achilas pras (kbap), together with the more familiar concept of ta'am k'ikar (tk). Simply speaking, the concept of kbap and hml are ways of making a shiur for chiyuv malkus, whereas tk is a method of creating issur but would not transform the heter into issur to create a shiur for malkus. According to this approach, we always have to first deal with whether bitul takes place. Only when there is rov issur or ta'am k'ikar so that bitul is not taking place, can we begin to discuss whether there is a shiur for malkus based on hml or kbap (as tosafos explains 36b d.h. shetai). But by min b'mino where there is no ta'am or where there is rov heter, since there will be bitul, there is no room to even begin a discussion about hml and kbap.
But unfortunately it is not so simple.
In the discussion of the gemara whether the chiyuv malkus is created through hml which means that the half kezayis of heter actually combines with the issur to create a shiur for malkus, or whether we need a kbap in order to have a full shiur of issur for malkus, the gemara never mentions tk. Tosafos (d.h. u'kezayis) actually asks why do we not mention it and explains that at this point we are assuming that tk also requires a shiur of ta'am just as we require a shiur of issur, and therefore wouldn't help to create a chiyuv malkus. However, the Mekor Chayim (ba'al nesivos hamishpat in 442) explains that all the cases in the gemara are cases in which ta'am k'ikar is irrelevant. TK would apply when the flavor of the issur is absorbed in the heter, but in these cases the flavor of the issur never becomes absorbed in the heter. The chavos da'as (same authoer in y.d. 98:1) also explains this to be the peshat in the case of kupos which is flour of issur mixing with flour of heter (lach b'lach, min b'sheino mino), where the taste of issur remains in its place and is never absorbed ino the heter [this is against tosafos nazir 36b d.h. shetai, who says that we are speaking about min b'mino, because tosafos assumes that every case of min b'sheino mino of lach b'lach will give ta'am and therefore invoke ta'am k'ikar]. With this he answers tosafos question as to why we don't mention in nazir 36 the concept of tk at all. The rationale is that we are speaking about shom and shemen in the mekapeh which also do not put flavor in the mekapeh. Therefore the entire discussion of the gemara ignores tk, and discusses only hml and kbap. Based on this we see that hml and kbap are not just methods of building off tk and creating a shiur kezayis, rather they are independent methods of creating issur to begin with even when tk doesn't apply at all.
Friday, April 18, 2008
The gemara tries to make the machlokes whether the father can impose nezirus on his son until he reaches o'nas nedarim or until he reaches gadlus, dependent on the machlokes whether it is based on a halacha l'moshe misinai (father is in control to impose nezirus until gadlus) or based on chinuch (father looses control at the age of o'nas nedarim). The rationale is explained by the gemara "since the child leaves the fathers jurisdiction (for nedarim), he no longer has an obligation of chinuch. Tosafos indicates, and the Rosh writes explicitly that there is no mitzvah on the father to be mechanech a child in a mitzvah that the child himself is fully obligated in -דכל מצוה שהוא מחוייב בה אין אביו מחוייב לחנכו בה
Although the gemara falls off this teliya, the gemara never seems to reject this sevara. Therefore, it should follow that there is no mitzvah of chinuch on a father to be mechanech his son once his son reaches the age of bar mitzvah. However, in kiddushin 30a the gemara says clearly on the pasuk of חנוך לנער על פי דרכו that it means to train a child between the ages of 16 and 22 because that is the age of "na'ar" that the pasuk refers to and as rashi explains the chinuch at that stage will teach him a derech with which to live his whole life. From this gemara it seems the mitzvah of chinuch not only extends past bar mitzvah, but the ideal state to give mussar and be mechanech the child is after bar mitzvah.
Thursday, April 17, 2008
The gemara tries to explain why the father has a right to impose nezirus on his son. R"Y says that it is a halacha l'moshe misinai, and Reish Lakish says that it is because the father has an obligation of chinuch. The answer of Reish Lakish seems difficult because chinuch would explain why the father is obligated to enforce the commitment of nezirus, but does not explain why the father has the right to impose the nezirus in the first place. If the assumption is that either the father or the mother can impose the nezirus, just that the father has a chinuch obligation to enforce it, then even if the mother imposes the nezirus on the child the father should be obligated to enforce it, and that doesn't seems to be correct from the implication of the mishna.
The maharatz chiyus assumes that the nature of the mitzvah of chinuch is to prevent the shock factor when the child turns 13 to going from nothing to everything, therefore we get him accustomed to doing mitzvos - chinuch. Based on this he assumes that chinuch should only be applicable to mitzvos that the child will definitely be obligated in as an adult. He is therefore very bothered by the application of chinuch to the acceptance of nezirus, since there is no reason to assume this child will ever be a nazir? He answers based on the Rosh (although he quotes the shita, it is really printed in the Rosh) - כדי לחנכו במצות דנזיר סייג לפרישות - why is the rosh adding a mussar shmooze that nazir is a fence for prishus? Maharat Chiyus explains that there is certainly a chinuch obligation to train children in middos, which included prishus. Since nazir is a method of teaching prishus, that is the rationale for chinuch applying to nezirus.
I am hesitant to agree with the mahartz chiyus on two accounts. 1. His assumption that chinuch is to prevent the shock factor - To me it seems more logical to assume that it is part of the mitzvah of Talmud Torah (that would explain the position of reish lakish why it only applies between father and son as oppposed to mother and to daughter). There is the education that is done in the beis midrash with books and then there is the practical education done in real life by showing him how to do mitzvos. Based on this approach that it is for educational purposes, so that he has a better understanding of mitzvos, the concept of chinuch can certainly be applied to mitzvos that he won't necessarily become obligated in such as nezirus, which would answer the question of the maharatz chiyus. 2. I think that the Rosh is not coming to answer the question of the maharatz chiyus but rather coming to answer the question that i began with. How does chinuch give the father the right to impose nezirus? The Rosh answers that nezirus is an important step in teaching the child the middah of prishus, therefore the rabbonon empower the father with the ability to impose nezirus so that he can successfully teach the mida of prishus.
As an aside, we learn from this Rosh an important lesson. We often focus the attention of our chinuch on the specific mitzvos and ignore the general attitude and middos. From the Rosh we see that the midos also qualify as mitzvos (see ohr sameiach hilchos talmud torah), and therefore we have as parents an obligation to be mechanech our children with proper middos, not just to wear tzitzis and daven.
Wednesday, April 16, 2008
Finally a break from kodshim!
The gemara explains the machlokes in the mishna whether the fact that she will have to shave her head is considered a nivul and an inuy that would justify his right to do hafara even after the blood of the korban has been sprinkled (rosh), is dependent on whether we consider a sheitel a good option. The Tanna Kama holds he can't do hafara after the blood has been sprinkled because there isn't any inuy with the giluach since she can just wear a sheitel, but R' Meir argues and says that because of zuhama he doesn't want her wearing a sheitel [Tosafos seems to understand that to wear something external that she makes look like part of her is degrading in the eyes of the husband, but the Rosh seems to understand that it is specifically the fact that she will be wearing the hair of a goy that is mezuham in the eyes of the husband].
The Ein Mishpat (although typically only cites sources in shulchan aruch) comments that from here we see a heter for married women to wear sheitels as a means of covering their hair. However the ya'avetz says that this gemara would not be a proof that a sheitel is permitted as a valid head covering even for the public domain [where the gemara in kesubos insists on a full covering (71b)]. The ya'avetz explains that the husbands claim acc. to R' meir in the mishna that he doesn't want a women with a shaved head, must be referring to a place where he would normally see her hair and since both the sheitel and a shaved head are degrading in his eyes, he can be meifer to prevent giluach. Clearly it can't be speaking in the reshus harabim, because in the reshus harabim her head would anyway be covered with a full covering and he would not see her hair even if she had hair. Rather the gemara is speaking in a more private domain where the husband will normally see her exposed hair, and therefore has a claim that he doesn't want to see her bald or with a sheitel. Based on this the ya'avets concludes that a sheitel doesn't qualify as a valid covering for a woman in the reshus harabim.
From the ya'avetz who explains that the gemara is speaking about a more private area where her hair would be exposed, seems to support R' Moshe's claim that in the home (presumably in the presence of just her husband) she does not need to cover her hair (even if she is a nida). If a woman would have to cover her hair even in her home, there would not be any situation where he should be makpid about the fact that she is bald since anyway her head would be covered. In truth, the ya'avetz avoids one from drawing this conclusion by writing:
אלא ודאי הכי פירושו, דאשה מגולחת היא נמאסת קצת לבעל שלפעמים בביתה שאינה יכולה להזהר כל כך מגילוי שערה, וכשראשה נגלה והיא נראית קרחה היא מתגנה עליו לפי שהשער נוי הוא לאשה כדבר הכתוב
Meaning, that although she has to keep her hair covered even in the home, sometimes she won't be so careful and it is for those situations where the husband has a claim of not wanting a bald wife. However, it seems unlikely that the husband has such a major hakpada for the chance that he may see her hair uncovered accidentally. The ya'avetz's description of the concern being in private would be much more understandable if we assume like R' Moshe that in the house she need not have her hair covered at all (at least when no one other than her husband is present). Then he would have a strong claim that in the home where he would normally see her hair, he doesn't want to see her bald.
Regarding the proof of the ya'avetz that since the gemara is speaking in private, it implies that in public it would be assur to use a sheitel as a head covering, doesn't seem to be such a strong argument. Perhaps the concern of R' Meir that the husband doesn't want to see his wife bald where he would otherwise see her hair is in private. But the solution of the Tana kama that she can wear a sheitel would take away his concern of seeing her bald because she would likely wear the sheitel always, both in public and in private, but now he would have a new concern that the fact that he knows she is wearing someone else's hair on her head is also megunah to him. Since there is no valid possibility to cover up her baldness with a sheitel, he can be meifer to prevent giluach.
Monday, April 14, 2008
Unfortunately I don't have much to add to the daf the past few days so i decided to blog about at thought on inyana d'yoma - Pesach.
בפסחים ו ע"ב קאמר הבודק צריך שיבטל, ופרש"י וז"ל שיבטל בלבו וכו' ואומר כל חמירא דאיכא בביתא הדין ליבטיל עכ"ל. הרי פתח בלשון "בלבו" וסיים ב"ואומר," וצ"ב. גם קשה מפרש"י בעצמו ד ע"ב שכתב "והשבתה בלב היא השבתה". וא"כ אמאי סובר שצריך שיאמר כל חמירא וכו'. ונראה לפרש בהקדם קושיית הגרע"א על הר"ן ריש פסחים. בהא דלא סגי בביטול גרידא כתב הר"ן "לפי שביטול תלוי במחשבתן של בני אדם ואין דעותיהן שוות ואפשר שיקילו בכך ולא יוציאו מלבן לגמרי". הרי חשש הר"ן שאינו מבטלו בלב שלם, אבל מה בכך שאינו מבטלו בלב שלם הא קיי"ל דדברים שבלב אינם דברים, וכיון דאומר בפיו דמבטלו אף דבלבו אינו כן הא אין מחשבת הלב מבטל מה שהוציא משפתיו. וכתב הגרע"א (פסקים ס' כ"ג בד"ה מ"ש מעכ"ת ני' בכוונת הירושלמי) וז"ל וצריך לומר כיון דבאמת לשון ביטול לא הוי הפקר ממש רק גילוי דעת למה שבלבו, שאינו חושבו ושנחשב לו כעפרא, וכיון דאנו דנין על מה שבלבו דהיינו בדרך גילוי מלתא מה שבדעתו, ואם בדעתו אינו כן אין הביטול כלום עכ"ל. ומתוך כך כתב הגרע"א דהא דקנסינן בחמץ שעבר עליו הפסח אף כשביטלו כמש"כ המחבר (ס' תמ"ח ס"ה) היינו רק כשביטלו דלא יצא מרשותו לגמרי אבל חמץ שהפקירו שיצא מרשותו לגמרי עדיף מביטול ולא קנסו [ודלא כמש"כ המ"ב שם ס"ק כ"ה]. נמצינו למדים שיש חילוק יסודי בין דין הפקר לדין ביטול, שבהפקר העיקר הוא במה שמוציא משפתיו, אבל בביטול אף שהוא ודאי צריך להוציא מחשבת לבו מפיו דבלא"ה אינו כלום, מ"מ העיקר חלות הביטול הוא במחשבת לבו ורק מהני פיו לגלות על מחשבותיו הטמונים בלבו. ובזה דברי רש"י מדוייקים מאוד, דאילו היה סובר רש"י שעיקר ביטול הוא מדין הפקר כמש"כ התוס' מסתברא שהעיקר במה ש"אומר" ומוציא מפיו שמסלק רשותו ממנו [ואע"פ שגם הר"ן כתב שהוא מדין הפקר, היינו שע"י הביטול נפיק מרשותו כמו הפקר אבל אין מעשה הביטול כמעשה הפקר כדביאר הר"ן באריכות], אבל כיון שסובר רש"י שזה נלמד מ"תשביתו" שהוא השבתה בלב, אלא שצריך להוציא משפתיו, נמצא שהעיקר הוא במה שחושב בלבו שהוא כעפרא דארעא דלא חשיבי בעיניו לכלום, אלא שצריך להוציא מחשבותיו מפיו. לפיכך כתב רש"י בדקדוק נפלא שביטול הוא בלבו ואע"פ "אומר כל חמירא" שעי"ז מגלה על מחשבת לבו
Tuesday, April 08, 2008
The mishna is really on 23a, but since Tosafos is here i will speak about it here.
ומי שאכל מצה בערב הפסח מכין אותו מכת מרדות עד שתצא נפשו
We find 2 types of malkus that are m'drabonon, one is a makos mardus for doing an issur d'rabonon, and the other is a kefiya to be "מכין אותו עד שתצא נפשו" like we find in kesubos to force the fulfillment of mitzvas aseh. Tosafos has a safeik whether the unlimited malkus of עד שתצא נפשוis for a case where we are trying to push him to do mitzvos, so that the "limit" will be either when he does the mitzvah or when he dies, but when we are using malkus as a punishment for the violation of an issur we would model the amount of malkus after the d'oraysa and limit it at 40, or do we punish an unlimited amount of malkus even for the violation of a d'rabonon. The Mahratz chiyus quotes from the teshuvas rashbam that we only implement the unlimited malkus to force people to fulfill mitzvas aseh, but for the violation of an issur we would not hit him עד שתצא נפשו.However, he points to a Rambam (Laws of Chometz 6:12) who writes:
ומי שאכל מצה בערב הפסח מכין אותו מכת מרדות עד שתצא נפשו
There are 2 problems with this Rambam, first that we don't hit עד שתצא נפשו for violating an issur, and second we don't hit עד שתצא נפשו post facto. The mahratz chiyus deals with the first question by explaining that the issur of eating matzah on erev pesach is linked to the mitzvah to eat matza at night l'teiavon, therefore eating matzah on erev pesach is essentially a bitul mitzvas aseh that we can hit him for עד שתצא נפשו. However, he never deals with the second question which is that the Rambam sounds like we punish him for the eating of matzah on ereve pesach, after he already ate it, not only to prevent him from eating. How can we punish him so severely after the fact has been done? Perhaps the Rambam holds that just as one can force to fulfill a mtizvas aseh such as succah and lulav, we can also force עד שתצא נפשו to fulfill the mitzvah of eating matzah l'teiavon. Therefore, if one has shown that he is not going to eat matzah l'teiavon by eating it on ereve pesach, we force him to stop eating it and accept on himself not to eat for the rest of the day, and we are entitled to force him by hitting him עד שתצא נפשו .
Another chiddush we see from this Rambam is that eating matzah l'teiavon is not just a hidur mitzvah (as the rashbam says in pesachim 99b) because we wouldn't hit him עד שתצא נפשו for a hidur mitzvah (at least i am not aware of any sources that indicate that we would). Rather the Rambam holds that it is essential to the primary chiyuv of eating matzah, that it be eaten l'teiavon.
Sunday, April 06, 2008
The gemara says that if a nazir would become tamei multiple times, so long as he has not entered a state where he is ready to begin his nezirus ta'hara, we consider the multiple tu'mos to be tu'ma arichta - one long tu'mah. Therefore even if he came into contact with tu'mah many times, he would only be chayev one korban. We have a machlokes at what point will a new tu'mah require him to bring a new set of korbanos (R' Yossi bar yehuda holds that nezirus tahara begins on day 7, and Rebbi holds that it begins on day 8, but both agree that if he would become tamei on day 7 from his original tu'mah he would not require a new set of korbanos, but if he became tamei on day 8 even prior to bringing korbanos he would have to bring a whole new set of korbanos. Rabbonon hold that if he became tamei prior to bringing his chatos, he would not require a new set, but after his chatos he would require a new set. R' Yishmael holds that if he became tamei prior to bringing his asham he would not require a new set, after bringing his asham he would require a new set); BUT all agree that if he becomes tamei multiple times between day 1 and day 7 he would only require one set of korbanos at the end.
Although regarding the korbanos we consider multiple tu'mos to be a tu'mah arichta. However, regarding malkus for violating the l'av of tu'mah, we consider each act of tu'mah to be a seperate violation (even though he was already ta'maei) and receives malkus for each time he was warned and came into contact with tu'mah. This is clear in the Rambam (Avel 3:4) by a kohen:
וכן אם נגע במת והתרו בו ופירש וחזר ונגע והתרו בו אפילו מאה פעמים לוקה על כל אחת ואחת, היה נוגע ולא פירש או שהיה עומד בבית הקברות ונגע במתים אחרים, אע"פ שהתרו בו כמה פעמים אינו לוקה אלא אחת שהרי מחולל ועומד כל זמן שלא פירש
Similarly by a nazir, he is chayev malkus for every act of coming into contact with tu'mah, even though he would only be chayev one set of korbanos for his tu'mah.
Friday, April 04, 2008
The gemara assumes that if one would be in a cemetery and warned not to accept upon himself nezirus in a state of tum'ah and ignores the warning, he receives lashes. Tosafos questions why do we not consider this a l'av she'in bo ma'aseh since all he is doing is staying where he was, and the dibur of accepting the nezirus would certainly not qualify as a ma'aseh? Tosafos answers:ולאו הכאי כלאו שאין בו מעשה במה שמקבל נזירות, דלאו שיש בו מעשה הוא במה שאינו יוצא משם כשנדור בנזיר
Tosafos understands that the decision to stay in the cemetery when he accepts upon himself nezirus is considered an action. Simply speaking it is hard to understand. The hagahos of R"b Ransborg explains Tosafos based on the Magid Mishna (Hil. Sechiros 13:2) that we categorize a l'av sheyesh bo ma'aseh by the type of l'av that it is, meaning a l'av that either can be or perhaps typically is violated with an action is called "yesh bo ma'aseh" even if now it is violated passively. Similarly the l'av of tu'mah which can be violated through an action is considered to have an action even when violated passively. The Gilyon Maharsha and Mitzpeh Eisan interpret Tosafos that we combine the original act of entering the cemetery (even though it was done b'heter) with the acceptance of the nezirus to qualify it as an action. This explains (as well as the Magid Mishna's approach) the halacha (y.d. 372) that requires a kohen who is in the house of a meis to leave immediately even if he is naked. We don't consider remaining in the house to be passive where there is a dispensation for kavod habriyos, rather we consider it to be active.
The nafak minah between the 2 approaches above is if a temei person who is not right now in a cemetery would be mekabel nezirus. According to the magid mishna since it is a l'av that is typically violated through an action, he would get malkus. But according to the other achronim that we combine his entering the cemetery, it is mistaver that it would only work so long as he is in the cemetery but if he has already left the cemetery just that he has a lingering state of tu'mah, the original entering the cemetery could not make this into a ma'aseh. This is very meduyak in Tosafos that the refusal to leave the cemetery is what turns it into a ma'aseh.
Thursday, April 03, 2008
The gemara makes it clear that there is a positive mitzva of giluach at the end of the nezirus (and if one would become tamei after the korban before the giluach, they are mevatel this mitzvah of being migaleiach b'tahara). The Tosafos 13a explains the mishna 13b, that if one accepted nezirus for the birth of his son and then nezirus on himself, and after doing 20 days of his own nezirus the son is born, he must interupt his nezirus to keep 30 days for the acceptance on his son and then be mashlim the nezirus with another 10 days. However, if he would do giluach when the nezirus of his son ends, he will only have a 10 day growth when it comes time for his giluach, he should not do any giluach until the end of both nezirus and then do one giluach for both nezirus. Why is this not a problem of doing mitzvos chavilos chavilos (in bundles)?
R' Moshe (o.c. 1:189) doesn't discuss this case, but says a yesod that answers this question. Chavilos is only a problem when one is pushing together multiple actions to get them done more efficiently such as unrelated brachos that should each require a cup of wine being made on one cup. But when one does one ma'aseh mitzvah, but has 2 kiyumim that are fulfilled with that, there is not problem of chavilos. He writes that if one would do kisuy hadam on the blood of many chickens at once, it is not called chavilos since he is doing one ma'aseh mitzvah, just that he is fulfilling many mitzvos through that action. Here too, he is doing one ma'aseh mitzvah of giluach, just that he is fulfilling 2 mitzvos with that action.This gemara seems to be a pretty good proof to R' Moshe's yesod.
Wednesday, April 02, 2008
Back on Daf 4b I quoted R' Moshe that Nazir shimshon is really a davar ha'asur rather than davar hanadur, but we learn from a gezeiras hakasuv that you can be matfis in that, but since it is b'etzem a davar ha'asur one cannot be sho'el on it. This conforms with the mefaresh on today's daf who says that shimshon was not a davar hanadur.
On today's daf the Orach Mishor quotes the Maharshal on the Smag who says:שהרי תלה נזירתו בדבר שלא היה ע"י נדר אלא ע"י מלאך במצות היוצר, ויש לנו לומר הואיל דטרח לתלות נזירות בדבר שאין דרך בני אדם לנדור בענין זה, החמירו חכמים כנדר שהודר על דעת רבים שאין לו התרה, והחמירו בו יותר מתולה בדבר איסור שהוא נדר על דעת חכם ששינה מדרך הנודרים, ולענין נזירות [האו"מ מחק תיבת "לא"] בעינן שידור בדבר הנדור כמו בנדרים
Based on a slight girsa change (which the orach mishor does not seem to have any problem doing throughout this entire mesechta), he explains that technically a nazir shimshon is being matfis in a davar ha'asur and should not be chal at all. But since he made his nezirus pending on something which is out of the ordinary such as shimshon who became a nazir through an angel. Basically he seems to understand that m'doraysa nezirus shimshon should not be chal at all, but the Rabbonon were machmir to give it the status of nezirus and they also were machmir to consider it like a neder al da'as rabim which doesn't have hatara. This approach which implies that the concept of nezirus shimshon is created by the Rabbonon doesn't seem to fit with the gemara in Makos 22a which implies that you would receive malkus for violating nezirus shimshon?
Furthermore, the Orach Mishor (when dealing with the Rambam) discusses a kesef mishna who says that a safeik of nezirus shimshon would be more chamur than regular nezirus, and the orach mishor argues and says that the gemara in nedarim 59 implies that since one cannot remove nezirus shimshon, it is a davar she'ein lo matirin and we end up being more lenient with it than we are by standard nezirus which is yeish lo matirin. Based on this approach in combination with the understanding that the creation of Nazir shimshon is m'drabonon, it could be chazal wanted to treat it like a neder that was done al da'as rabim to make it that one cannot remove it, because in that way they can be meikel with it since it is only m'drabonon. Meaning, they were trying to accomplish a goal of allowing leniency for this rabbinic form of nezirus, and the only way to do that was to impose a stringency that there is no hatara for it so it becomes ein lo matirin and we can allow bitul.
Tuesday, April 01, 2008
Sorry for the long post, but i think it is interesting.
On Sunday I wrote a gett that was written properly, and after it was written and signed it was given over by the husband to me (shliach) to deliver it to his wife, but we realized that for whatever reason (not worth addressing now) there was a concern that one of the eidei chasima may not have signed it lishma (he forgot to speak out that he is signing l'ishmo u'lishmah). R' Nota Greenblatt who was mesader the gett paskened that I had to rewrite the gett from scratch, which would be a "nechpaz laleches" (husband in a hurry to leave town) type gett, because the husband didn't have patience to wait around. Meaning that, the rewritten gett will not be written in the presence of the husband [the Rama writes (E.H. 154 seder haget 33) that this method is only b'sha'as had'chak. But the pischei teushuva points out that we don't see any indication from the gemara that this method is only sha'as had'chak]. He explained that there is a significant advantage to the gett being written in the presence of the husband because we are then able to write in the gett the place where the husband is standing at the time it is being written, i.e. העומד היום בפאלא אלטא מתא דיתבא על כיף ימא דמתקרי סאן פראנציסקא בעי. The advantage to this is that according to R' Moshe (Igros Moshe E.H. 1:125) identifying the husband in the gett as the person standing in that particular city and differentiating him from the many others out there in the world who may have the same name (and same wife), is an essential (although not me'akev) aspect of the gett. Nevertheless, R' Nota felt that it is worthwhile to do a "nechpaz laleches" style gett, which leaves out the place where the husband is standing, rather than use the first gett on which the signing could be considered shelo lishma and is therefore a chashash of mezuyaf mitocho (Tosafos Gittin 4a, Shulchan Aruch 131:6).
In light of the Tosafos on today's daf there is another majorly significant advantage of writing the gett in the presence of the husband and not using the "nechpaz laleches" method, which is likely the issue that the Rama was referring to (since from the language of the Rama the kepeida seems to be on the giving over of the gett to the ba'al after it is written rather than the concern being the nusach that is written in the gett). The gemara says that something i cannot do right now because it is mechusar ma'aseh, i cannot appoint a shliach to do i.e. one cannot appoint a shliach to be mekadesh an isha that is married at the time of the appointment, since it is mechusar the ma'aseh gett. Tosafos explains that even in a situation where i myself can do the ma'aseh now which would enable me to do the process now, i still cannot appoint a shliach on that process, since the ma'aseh has not yet been done. With this Tosafos explains that the gemara (yevamos 52a) has a tzad that a yavam cannot appoint a shliach to write a gett for a shomeres yaveim, even though yibum can be done against her will and it is totally in the control of the yavam, since it is mechusar ma'aseh and he can't divorce her now, he cannot appoint a shliach to divorce her. Based on this R' Akiva Eiger (Teshuvos 141), Noda B'yehuda (drashos), Machaneh Efraim (Gittin perek 15) question, how can one appoint a shliach to write and deliver a gett to his wife, since he himself cannot deliver the gett until it is written so it is mechusar ma'aseh and he should not be able to even appoint a shliach to deliver it until after the gett is actually written. Based on this concern there is a significant advantage to writing the gett in the presence of the husband so that the husband can appoint the shliach to deliver the gett after it has been written to avoid this problem.
However, the Chasam Sofer (back of gemara) explains that the concern of Tosafos only applies if there is a "panim chadashos" created by the missing action, such as the chalos created from yibum, or the chiyuv challah created by kneading dough. But when there is an action that is missing such as the writing of a gett, since there is no chalos or chiyuv created by the gett being written, it is not considered mechusar ma'aseh and therefore the shliach to deliver the gett may be appointed even before the gett is written.
Therefore, it is still not so clear why the Rama is makpid to only use the Nechpas Laleches method for a sha'as had'chak. It seems to be because we want to be makpid that the husband hand over the finished product of the gett to the shliach, using the formal methods of "nesina" as it would be given to the woman herself (as the Rama writes in seder haget 98 - that the shliach l'holacha should receive it from the husband using the same chumros that the woman herself would).