Sunday, October 31, 2010

Horyios 4b - Is there place for compassion in din?

The mishna asys that a ger, mamzer and a zakein who is not fit for children is passul to be on the Sanhedrin. Rashi comments that he doesn't understand why an elderly person who is unfit for children would be unfit to pasken. R. Akiva eiger in the gilyon ha'shas points to rashi in sanhederin 36b who says that an elderly person has already forgotten the pain of raising children and is considered an "achzar" - mean. Why does Rashi not say the same peshat here? The Miloh HaRo'im suggests that in sanhedrin where we are speaking in context of capital punishment the requirement to be compassionate is understandable, but Rashi doesn't understand why that would be important in this context. However, he suggests that since this person is unfit to judge capital cases, he is unfit to be on the Sanhedrin and a p'sak that is authorized by him would not have status of a sanhedrin ha'gadol.
The Rambam in his commentary on mishna seems to have a slightly different girsa than Rashi in the mishna. Rather that the girsa of זקן שאין ראוי לבנים, the Rambam seems to have been goreis זקן שלא ראה בנים. Rashi seems to hold that even if he has children, since he is now elderly he has already forgotten what it is like to raise children. But the Rambam explains that an elderly person who never had children will have a tendency to be an "achzari" and not be compassionate because he doesn't understand the love for children. See Rashash for some discrepancies between the Rambam in the pirush hamishna and the rambam in the yad.
Both Rashi and the Rambam agree that the dayan must be trained in compassion, and one who never had children or is elderly and forgot about the care for children, will not be able to exhibit the necessary compassion. This approach seems contradictory to the concept that we find in the mishna Kesubos 84a - אין מרחמין בדין (see also tosafos baba basra 3a who asks this on rashi). Although there is a concept of והצילו העדה and the judge is obligated to be look for zechus, that is all within the confines of din. A judge is not allowed to show compassion that goes beyond the din. Why then is there a requirement to have children so that he will be trained in being compassionate?
We learn from here a very important concept. The judge is obligated to judge using din and not any form of compassion. However, human nature is such that it is impossible for a compassionate person to use din without subconsciously looking at the issue through eyes of compassion. The Torah is not given to robots. A compassionate person by nature will not rest until he explores every possibility of exonerating the person using din. The conscious decision of the judge should be din, but the judge should subconsciously be using compassion to decide the din.

Friday, October 29, 2010

Horiyos 2b - Da'as Torah and Listening to the Rabbis

For an Audio shiur on this topic - Click HERE for stream link, and HERE for download.
Rashi on the pasuk of לא תסור מן הדבר אשר יגידו לך ימין ושמאל quotes the famous sifri that even if the Rabbis tell you that the right is the left and left is the right you are required to listen. The implication is that even if the sanhedrin would be matir something that you know is assur, you should listen to them. This concept seems to be supported by the story between R. Gamliel and R. Yehoshua in the mishna in Rosh Hashana regarding the calculation of Yom Kippur, where R. Yehoshua was required to violate Y.K. This seems to contradict the gemara which says that when a talmid knows that the beis din is making a mistake yet follows their ruling to eat cheilev, it would constitute an intentional violation. The case of the mishna which says that you would bring a korban for shogeig would only apply if the talmid thought that this was included in the mitzvah to listen to the chachamim. The gemara is clearly saying that those who follow the leniency of the beis din even though they know it is wrong but are making a mistake in thinking that one is supposed to follow the chachamim even when they are wrong, brings a korban for this violation. The gemara holds that one cannot follow the Rabbis when they tell you the left is the right!?
The Maharatz Chiyus points to the Ramban in sefer hamitzvos who says that a person who thinks the sanhedrin is making a mistake because they don't have the information that he has, or because they forgot a din, is not allowed to blindly follow their pesak. Rather, he is obligated to discuss it with them and make them aware of the information that he has. Only after he discusses it with them and they refute his points do we completely reject his opinion to the point where he should follow them even if in his opinion they are still making a mistake. The Rashash also makes this point. R. Elchonon Wasserman (kunteros divrei sofrim 4:9) explains that the Ramban holds that when sanhedrin issues a "hora'ah", one is required to listen even if their judgement is faulty. But if they are making a mistake due to inaccurate information so that their pesak is a ta'os (mistake) rather than a hora'ah, one should not listen to them.
R. Elchonon (13) offers another approach to answer the question between our gemara and the sifri. Perhaps the sifri entitles chachamim to authorize a pesak that is against the torah - אפילו על ימין שהוא שמאל, but only if they make it clear that this is their takana and not the din torah. This would be as the Rambam writes in hilchos mamrim that the chachamim can forbid chicken and milk so long as they don't claim that it's from the torah itself. But, if the chachamim are making a mistake, there is no concept of "da'as torah" to follow their mistake. R. Elchonon suggests that this d'rasha of the sifri may be the source for the opinion יש כח ביד חכמים לעקור דבר מן התורה.
Clearly, one would not have to follow the p'sak of a Rav who they know is making a mistake because he is basing his p'sak in a medical or scientific related shayla on inaccurate facts or is not aware of an integral source in halacha. However, people who have a tendency to reject "da'as torah" because they feel that they know the science better, are often missing the torah knowledge to pasken appropriately. B'kitzur, without a good knowledge of both the facts (or science) AND the Torah, the p'sak wouldn't qualify as a "ho'ra'ah", but as a "ta'os", and it would be forbidden to follow it.

Thursday, October 28, 2010

Avoda Zara 76a - Absorbing Heter

Rav Ashi concludes that the distinction between bbq grills that were used for non-kosher food which require libun (our mishna), and those used for kodshim which require only hag'ola (boiling), is the status of the item when it was initially absorbed into the grill. Items that have status of issur at the time they are absorbed require libun to kasher, but items such as kodshim which have status of heter when they are absorbed, can be kashered through hag'ola. Even the inital challenge to this approach by Rabba - סוף סוף כל קא פליט איסורא קא פליט, that at the time of kashering it had already become assur and should require libun, doesn't fundamentally undermine the chiddush of Rav Ashi. Meaning, Rabba would agree that if the hag'ola is done to the kodshim prior to becoming assur as we find in R. Nachman's idea כל יום ויום נעשה גיעול לחבירו, he would agree to Rav Ashi. The problem is that the hag'ola is only being done after the absorbed issur becomes נותר. Based on this, if the issur is being kashered prior to becoming assur, everyone would agree that hag'ola can be used to extract the issur even though it absorbed over the fire (in a method that would ordinarily require libun). Based on this, it is clear that if one would need to kasher a grill that was used for meat in order to use it for milk, they can kasher through hag'ola even according to those who disagree with R. Ashi since at the time of kashering it is still he'teira. However, if one had a grill on which he grilled steak and then 24hrs later grilled dairy on the same grill, Rav Ashi would still hold that it can be kashered through hag'ola. The rationale is that since at the time the meat and the dairy became absorbed into the grill, it was התירא בלע it is sufficient to use hag'ola to kasher, even though now it is a combination of meat and milk flavor that is absorbed in the grill. But, if one would have grilled dairy within 24 hrs of grilling meat, the dairy would not qualify as התירא בלע because the taste of the meat will mix with the dairy and become absorbed as a combination of meat and milk - איסורא בלע. In that case all would agree that libun is necessary.

Wednesday, October 27, 2010

Avoda Zara 75b - My Keurig Coffee Maker

The idea of having keilim that are difficult and sometimes impossible to tovel is not a new phenomenon. The Chochmas Adam (73:13) discusses very large vats that were used for beer and explains that they do require tevila. He dispels the notion of being attached to the ground and no longer a keli. He elaborates in the Binas Adam (66) about the concept of כל המחובר לקרקע כקרקע and why it doesn't apply here - since it was turned into a keli prior to being fixed into the ground. Since it is not possible to tovel them, he suggests making a very large hole rendering them unfit and having a Jew fix it. At the end he then retracts since the beer that is stored in them is unfiltered and is not fit to drink, and with this justifies the custom of not being tovel these vats. But in the Binas Adam he is reluctant to rely on this heter because it should be no better than a shechita knife which is still fit to use for other foods that are eatable.
Regarding equipment that is plugged into the wall, some want to be matir without tevila based on the concept of being attached to the ground and losing the status of a keli. The chochmas adam would seem to reject this idea even if it were actually fixed to the ground. But perhaps one can argue that a keli that is functional prior to being attached to the ground, will not lose its status of a keli by being attached. Yet, an electrical keli that is not at all functional until it is plugged in, will have a status of a keli that is קבעו ולבסוף חקקו and therefore not require tevila. Obviously, this sevara is a difficult one because the keli doesn't need to be attached to the ground to work, it only needs to be attached to electricity which is often attached to the ground, but can technically be attached to a battery as well - therefore even when attached to the ground may not lose it's status of being a keli.
I am a big proponent of toveling electrical appliances. I have done so many times and so long as they are properly dried before plugging in, don't present any problem at all. However, last year someone gave me a Keurig Coffee maker as a gift. This coffee maker is not just a plug in appliance but actually has an electronic circuit board and display screen. Toveling it would be tantamount to toveling a laptop - even a drop of remaining water on the inner board can short circuit the entire machine (and then even costco wouldn't take it back). It isn't clear that a keli that would be ruined by tevila is exempt from tevila. It is very possible that such a keli cannot be used. A friend of mine showed me a pesak from R. Dovid Feinstein in 1973 where he wrote that for something that would get ruined one can rely on a sevara that it contributes very minimally to the food such as a toaster which just browns the bread - see l'torah v'hora'ah here. But, this sevara wouldn't apply to our situation.
At first I thought that it should be permitted since the entire machine is plastic which doesn't require tevila. But, I called the company and found out that the element inside the machine which heats the water is certainly metallic. Does this machine require tevila?
I have what seems to be a good justification to exempt this machine from tevila. As I said, the entire machine is plastic, so the only part that is metallic and would be mechayev the entire machine tevila is the inner metal tubes which the water travels through to heat it up. The halacha of tevilas keilim is that "beis hastorim" - hidden areas of the keli, don't require tevila (y.d. 202:5, and last taz). Unlike tevila of a person where there is a problem of chatzitza even on beis hastorim because they need to be fit for bi'as mayim, the halacha by a keli is that it doesn't need to be fit for water to touch and can have a chatzitza. It is for this reason that we don't require one to immerse a keli until all the air bubbles empty from the inner parts of the keli - because the areas that aren't visible don't need to come into contact with the water. This coffee maker is constructed in a way where we have no parallel in the keilim of chazal. The food actually comes into contact with the beis has'tarim of the keli, and that is the only metallic part of the keli (aside from the pin that opens the pod like a can opener). Therefore, even if one were to be tovel this coffee maker, the metal tubes inside wouldn't have to come into contact with the water because it is just beis hastorim. It seems completely illogical to say that the part of the keli which is mechayev the entire keli in tevila wouldn't even need to come into contact with the water, yet the keli would require tevila. At least when we require tevila to a keli where the ma'amid is metal (even though the metal doesn't come into contact with the food), the metal nails and screws would come into contact with the water. But in our case where the metal part of the keli is beis hastorim and wouldn't need to come into contact with the water, it doesn't seem logical to say that the metal inside would still be mechayev the plastic part of the keli to be toveled (of course a keli that has metal and requires tevila, must be fully immersed so that even the plastic is toveled, but here the only part which would be mechayev tevila on the keli doesn't need to be immersed and therefore wouldn't be mechayev the keli to be immersed). After consulting R. Nota Greenblatt and sharing this sevara, he concurred.

Tuesday, October 26, 2010

Avoda Zara 74a - Fitting R. Elazar with R. Shimon Ben Gamliel

In the mishna there is a machlokes how to deal with wine in which there is some yayin nesech mixed in. Tana Kama says that the entire mixture is forbidden to benefit from, but R. Shimon Ben Gamliel (rsb"g) holds that one can sell it for the price of the kosher wine, deducting the value of yayin nesech. The gemara concludes that we pasken that for real yayin nesech we can only rely on RSB"G when barrels of yayin nesech are mixed with barrels of kosher wine, but not on a liquid mixture containing yayin nesech. Whereas for stam yaynam that falls into kosher wine, one can sell even the liquid mixture at the value of the kosher wine.
In the Mishna 49b R. Elazar offers another solution for dealing with bread of issur hana'ah that gets mixed with kosher breads - throw the value of the issur hana'ah into the sea so that you aren't benefiting from it. The Rabbonon disagree with R. Elazar because there is no concept of "redeeming" issur hana'ah. Rashi 49b explains that even RSB"G may agree with the rabbonon who argue on R. Elazar that throwing the value of the issur hana'ah away isn't sufficient, but would still hold that one can sell the entire mixture for the value of the heter that is in it, because by doing so they are not benefiting from the issur hana'ah at all.
The difficulty is that Rashi in our sugya seems to confuse R. Elazar's heter with that of RSB"G. Rashi d.h. chavis (and on 71b d.h. ela), in explaining the position of RSB"G himself writes that you take one barrel and throw it into the sea, thereby permitting the rest. Rashi d.h. v'issurei, explains a similar solution for chometz. Since Rashi himself holds that RSB"G will work even if we don't accept the solution of R. Elazar to throw the value of the issur hana'ah into the sea, rashi shouldn't have used R. Elazar's system to expalin RSB"G?
Perhaps rashi holds that there is a flaw in RSB"G system. We know that one cannot gift issurei hana'ah because the appreciation that the goy will have for you is also considered a benefit. How then can one sell 5 barrels of wine for the price of 4 (deducting the value of the yayin nesech) - he is essentially gifting the 5th barrel and therefore receiving benefit? Perhaps Rashi holds that the solution of RSB"G will only work if one sells all 5 barrels for the price of 5 barrels, and then takes the money of value of yayin nesech and throws it into the sea. Therefore, RSB"G approach is not independent of R. Elazar's throwing into the sea, it is in addition to it. That is why Rashi uses the logic of R. Elazar even in the opinion of RSB"G.

Monday, October 25, 2010

Avoda Zara 73b - Issur Ma'shehu of Tevel

According to R. Yochanan and Reish Lakish (who we happen to pasken like), all issurim in the Torah are batul when they no longer give taste (presumed to be 60x), except for tevel and yayin nesech which are assur even if there is a drop in a very large quantity. The gemara explains that the issur on Yayin Nesech is due to the chumra of yayin nesech. With this we can understand why Tosafos 73a d.h. yayin holds that it only applies to true yayin nesech that has been poured for avoda zara, but stam yaynam is batul in 60x (even according to the opinions who are machmir by stam yeiynam i.e. Ran, Tosafos quotes the R"i that nowadays where goyim are not real idol worshippers, stam yeiynam is like all issurim in the torah that are batul in 60x). However, the gemara struggles with tevel why are we so machmir that it is assur b'mashehu. The gemara explains that since it only takes on wheat kernel to exempt an entire pile of wheat from terumah gedola, the rabbonon instituted that the issur should be as important as the heter. Since one wheat kernel can create heter on an entire pile of tevel, one wheat kernel of tevel can create issur on the entire pile of heter.
Tosafos cites a yerushalmi that offers another rationale for why tevel is assur b'mashehu - it is a davar sheyesh lo matirin. Meaning, that there is easy way to remove the issur i.e. tithing, therefore so long as it isn't removed it will assur b'mashehu. Tosafos explains that both reasons are necessary. The rationale of our gemara כהתירו כך איסורו - since it is important in creating heter it is important in creating issur, only applies to tevel of teruma where we hold that one wheat kernel can fix the entire pile. This will not apply to tevel of ma'aser or terumas ma'aser which would require no less than 10%, therefore we need the rationale of דבר שיש לו מתירין to explain why tevel from ma'aser is also b'mashehu. Similarly, the rationale of דבר שיש לו מתירין only applies when the owner is around and can tithe properly, so we need the approach of כהתירו כך איסורו for when the owner is not available. It should follow from Tosafos that tevel that had teruma taken and is only missing ma'aser, when the owner is not around, should be batul in 60x like other issurim in the Torah.
The Hagahos Ashri offers another situation where we couldn't apply דבר שיש לו מתירין and therefore need the concept of כהתירו כך איסורו. He holds that davar she'yesh lo matirin only applies when the issur is intact, but if it dissolves in the heter, it no longer applies. This approach is quoted by the Rama (y.d. 102:4). The Gr"a (13) points out that from the fact that Tosafos doesn't use this approach indicates that they hold that even issur which dissolves can be considered a דבר שיש לו מתירין and not batul.

Sunday, October 24, 2010

Avoda Zara 72b - Does it help to have shomer shabbos pourers?

Halacha l'ma'aseh (I think many are not aware of this)
Those who truly appreciate fine wine (בדאבוני אין אני בכללם) are very particular about avoiding wine that is mevushal because it ruins the taste of the wine (which is exactly why it is permitted). At a simcha many prefer to serve the best and finest of wines, which is often not mevushal. Of course, they will be willing to spend on shomer shabbos waiters who are going to be pouring the wine. Is this sufficient?
When we discussed earlier on this blog some questions an answers about yayin nesech, this question was touched on and is worthwhile revisiting. The gemara in the daf today discusses the issue of nitzuk - attachment by pouring. Although in the context of mikva we pasken that it doesn't create an attachment, the gemara discusses the statement of Rav Huna who claims that in the context of yayin nesech we do consider nitzuk to be an attachment. Assuming we pasken like R. Huna, the result will be that when wine is poured into the container of a non-jew containing drops or residue of wine which are assur (because they touched his lips when he drank), the flow of wine will connect the entire bottle to the wine in his glass and render all the wine in the bottle to be yayin nesech through nitzuk. The application of nitzuk to the case of the few drops of residue seems clear both from the gemara 71b and 72b. Rashi paskens like R. Huna that nitzuk is an attachemnent, but Rabbeinu Tam disagrees. Tosafos says that in the case of a significant loss (such as pouring from a barrel where there is a large quantity of wine, or perhaps when the bottle of wine is very expensive) one can rely on rabbeinu tam in retrospect that the wine in the bottle will not be assur. However, if it is not a major loss (and certainly lichatchila) we must be machmir for rashi that nitzuk is an attachment. Another point to rely on is that if the wine in the bottle is greater than the quantity of yayin nesech in the goy's cup, it would be batul in 60x, but one can not rely on bitul l'chatchila. Therefore, one cannot have a shomer shabbos waiter pouring non-mevushal wine at a simcha into the cup of a goy (or non-shomer shabbos) because when they ask for a refill, the residue in the cup of the goy will make the entire bottle assur. The only solution to this problem is to have the wine poured into glasses in the kitchen and served in glasses to the guests, so that there are no refills without washing out the glasses.

Avoda Zara 72a - Theft less that a perutah

The gemara ultimately proves that meshicha is a kinyan that works for a goy from the case where a goy steals from a Jew and primarily the seifa of the braisa where a second goy steals from the first. The fact that the that goy #2 can be chayev misah for stealing from goy #1 implies that goy #1 who stole from the Jew actually acquired the item with meshicha. Tosafos explains that although the entire discussion of meshicha being effective only applies to a sale, but for a gift or any transaction that doesn't involve money all agree that meshicha works (as it does by a jew since there is nothing else). Nevertheless, we can prove the point from the case of theft even though there is nothing else but the meshicha on the item. Why? Because by theft it is coming to his hand illegally - if meshicha wouldn't be a standard kinyan even for a sale, it wouldn't work when it came into his hand illegally, and would only work by a gift where there is nothing else to make the kinyan AND it comes into his hand legally. It seems logical that Tosafos equates theft with a sale (rather than equating it to a gift) because in the context of a sale the item is also being acquired without consent of the owner (since he hasn't yet received payment). The taking of an item prior to payment in a sale is tantamount to stealing an item in the sense that the original owner still maintains a claim, to the exclusion of a gift where the original owner has no claim after the item is given. Therefore, if meshicha works by theft where the owner still has a claim, it should work by a sale where the owner still has a claim.
The gemara tries to prove from the reisha that a goy is chayev misah for stealing from a jew that it must be meshicha works, otherwise why would he be chayev misah. The gemara pushes that off by saying, perhaps meshicha doesn't work and the chiyuv misah is for aggravating the jew. To that the gemara asks, "if so, what does it mean 'it need not be returned", to which the gemara answers, "it is not b'torah hishavon". Rashi here indicates that according to the original thinking that meshicha works as an acquisition, the statement of לא ניתן להשבון, is an independent statement that the Jew is mochel on less than a peruta therefore it doesn't need to be returned. This is to the exclusion of stealing a full peruta that would need to be returned because the Jew isn't mochel. However, Rashi in yevamos 47b explains that even according to the approach that a goy acquires with meshicha, the statement of לא ניתן להשבון is to explain why the goy is chayev misah. If the goy would be obligated to return, that would be in place of capital punishment, thereby exempting him from capital punishment. But, since the goy is not obligated to return, he is chayev misah. This would apply equally to when he steals a peruta or less than a peruta, to the exclusion of a Jew who is obligated to return and therefore not punished. According to this approach, after the gemara says that meshicha doesn't work and the goy is punished for paining the Jew, the question of "what does לא ניתן להשבון mean?" is that since he is not being punished for stealing, but for paining the Jew, this can't be fixed by returning the money. So, why does the braisa imply that he doesn't need to return the money and that is why he is being killed -the capital punishment is for the pain he caused the Jew which is not at all connected to returning the money? To that the gemara answers that it is not b'torash hi'shavon, meaning that the crime committed was paining the Jew which is not possible to return, therefore he is chayev misha.

Friday, October 22, 2010

Chazon Ish

Tomorrow is the yahrtzeit of the chazon ish. I don't typically do this, but since the chazon ish didn't have children, his legacy is primarily in his seforim and partially in appreciating who he was.
There is a story about the chazon ish recorded in the sefer of R. Yitzchok Eliyahu Henkin (section of hespeidim pg. 195) recalling an episode that took place 93 years ago - תרע"ד לבריאת העולם
R. Henkin tells that he was a rebbi in the city Stoypzi and he went to visit the Rav of the city R. Yoel Sorotzkin. He saw a young man pacing back and forth wearing very simple clothing. He asked the young man, "who are you?", to which he responded "the son of the rav from kosvo". "What do you do? - a store owner. Do you set aside time for Torah study? - when there is time. What are you doing here in the house of the Rav? - the rav called me." R. Henkin writes that he assumed that he must have a monetary dispute and came for a din torah. Afterwards R. Henkin writes, he found out that this young man wrote a brilliant sefer and teh Rav called him to substitute for him to pasken the shailos in the town while he is away. R. Henkin writes that he spent 6 months talking in learning with the chazon ish and in every area he was fully knowledgeable of every detail getting down to the truth of the Torah.
R. Henkin relates that for every difficult question R. Chaim Ozer would say "let's go consult the chazon ish". He became a leader without being formally appointed. A leader who was hidden until the end - מי יתן לנו תמורתו

Wednesday, October 20, 2010

Avoda Zara 68a - Source for Ran quoted yesterday

On yesterday's post I explained the Ran who holds that the source of נותן טעם לפגם is as the gemara implies learned from the issur of neveila that deteriorates to a point that it is no longer eatable. Based on this approach, the heter for נותן טעם לפגם is not a limitation in the din of ta'am k'ikar, rather it is because issurei achila (forbidden foods) only applies when the person is benefiting from them. Therefore, the Ran concluded that if the appreciation in quantity compensates for the deterioration of quality, it would be assur since there would be an ultimate benefit and gain.
It seems to me that there is a strong support to the Ran's approach from the gemara today. The gemara tries to prove that the machlokes between R. Meir and R. Shimon whether נותן טעם לפגם is permitted applies even when the issur gives a bad flavor at the time that it falls into the heter (meaning that even under those circumstances R. Meir would forbid it). The braisa says that when yeast of chulin falls into dough (enough to cause it to rise) so that the dough is perfect, then teruma yeast falls into the same dough which causes it to have a sour flavor, נותן טעם לפגם - there is a machlokes whether it is permitted. From here we see that when issur or teruma falls in and gives a bad flavor, R. Meir would still hold that it makes the dough assur. The gemara pushes that off by saying, perhaps even R. Meir would agree that נותן טעם לפגם is mutar (when it is po'geim at the time of the mixture), but in the case of the yeast he holds that it isn't considered p'gam (detrimental). Although for eating purposes the dough is ruined by the extra yeast, it is now fit to use as a sour dough or yeast to help other doughs rise and is therefore considered an improvement, not a p'gam. The sevara seems to be that even though there is certainly a p'gam in the taste of the dough, it can be compensated for by the use of the dough for other purposes (such as rising other doughs) and therefore is considered נותן טעם לשבח. Just as the benefit for other purposes can compensate for the detriment in taste, so too the benefit of quantity can compensate for the detriment in quality and be considered נותן טעם לשבח and therefore forbidden.

Tuesday, October 19, 2010

Avoda Zara 67 - Ta'am L'fgam

There is a very fundamental argument between the Rashba and Ran in how we learn out the concept of נותן טעם לפגם (bad flavor) being permitted. The gemara speaks about נותן טעם לפגם being permitted to eat in two ways: 1. An item that is essentially fit to eat, but gives an off flavor either because it is slightly spoiled or because it doesn't compliment the food that it fell into (see rashi 67a d.h. kol, that this category doesn't need to be not eatable). 2. The issur deteriorates to such a degree where it is no longer fit to eat.
Tosafos 67a elaborates in their rejection of Rashi in Chulin 98b who holds that the concept of ta'am k'ikar is only Rabbinic which means that the application of the heter of נותן טעם לפגם to giving an off flavor (#1 above) only needs to be a rabbinic heter. Tosafos proves that we hold the concept of ta'am k'ikar to be d'oraysa and discusses the possibility of being able to give malkus for just ta'am of issur because it is literally like the issur itself. According to this approach, the heter of נותן טעם לפגם that permits the taste of issur even when it is just slightly off, would need to be דאורייתא.
The Rashba and Ran disagree about the source for the first type of נותן טעם לפגם. The Rashba writes that the gezeiras ha'kasuv of ta'am k'ikar which is the source that taste alone is considered significant like the item itself, only applies to a positive taste but not to a negative taste. The Ran (32b in Rif) points to the gemara 67b that asks for the source of נותן טעם לפגם and darshens the pasuk of לא תאכלו כל נבלה לגר אשר בשעריך - כל הראויה לגר קרויה נבלה, שאין ראויה לגר אינה קרויה נבלה. This pasuk teaches that any issur which is not fit for human consumption doesn't qualify as issur, and somehow uses this as the source to permit all נותן טעם לפגם even when the item is still fit to eat. The Ran explains the connection: Just as neveila which is spoiled and unfit to eat is permitted because the eater no longer enjoys or benefits from it, so too when an issur food gives a bad flavor to the soup that it fell into, the taste is permitted since the eater doesn't benefit from the issur. Therefore, the Ran writes that when the issur increases the quantity to a point where the benefit of the increased quantity offsets the minor detriment caused by the off flavor, the food would be forbidden (unless it literally deteriorates until it is no longer fit to eat at all).
There seems to be a fundamental argument between the Rashba and Ran in the nature of the heter of נותן טעם לפגם. The Rashba holds that there is no inherent relationship between the two categories of נותן טעם לפגם that were mentioned above. A food which is unfit to eat the Torah considers like dust from the drasha of שאין ראויה לגר אינה קרויה נבלה. But, when the issur is eatable just gives an off flavor, it retains it's status of issur, but the flavor it contributes to the soup is not included in the prohibition of ta'am k'ikar (the pri megadim explains that the gemara doesn't mean to learn the source of נותן טעם לפגם from neveila, just the premise of p'gam being mutar). However, the Ran holds that there is an inherent connection between these two categories. The entire heter of ne'veila that spoils is not because it is considered dust, rather because the Torah only forbids issur when there is hana'ah (benefit and enjoyment) from the eating of it. So long as there is no benefit or enjoyment it is permitted, therefore even when the issur is still eatable but contributes an off flavor it will not assur the soup. In short, the Rashba holds that the heter of neveila that is not eatable is a heter on the cheftzah and cannot be applied to an eatable food that gives off a bad flavor. But, the Ran holds that the heter of ne'veila is a heter on the gavra because he is not benefiting from the issur, which also applies to a case where eatable issur puts a bad flavor into the soup - but wouldn't apply when there is a benefit from the increased quantity.
The (pri megadin y.d. 103 m.z. 1) explains that according to the Rashba that the nature of נותן טעם לפגם is that it isn't included in ta'am k'ikar, we would still require bitul b'rov to permit the small amount of issur that is present (just that it won't assur up to 60x since it isn't included in the chiddush of ta'am k'ikar). But according to the Ran, so long as the person isn't benefiting from the issur being there, it is permitted to eat, no bitul is necessary. Therefore, the pri megadim suggests that they go li'shitasam regarding the machlokes whether on pesach we can permit נותן טעם לפגם. The Rashba holds that the heter of נותן טעם לפגם requires bitul, and since by chometz we are machmir for even the smallest amount (ma'shehu), we can't apply the heter of נותן טעם לפגם. But, the Ran who holds that נותן טעם לפגם wouldn't require bitul would apply the heter of נותן טעם לפגם even to chometz on pesach.
See the chazon ish (y.d. 30:2) for a more detailed discussion of the Ran, and whether the Ran would permit even when a 5 cups of issur falls into 4 cups of heter but spoils the flavor of the heter to a point where the increased quantity is not beneficial, or would the Ran still require that the quantity of heter be greater than the issur.
The Shulchan Aruch (Y.D. 103:2) is machmir (ויש מי שחוכך לומר) for the Ran when there is benefit from the increased quantity and the rama seems to agree, yet the rama in o.c. is also machmir for the Rashba (Shulchan Aruch O.C. Hilchos Pesach 447:10) that נותן טעם לפגם is assur because it requires bitul.

Monday, October 18, 2010

Avoda Zara 66a - Ta'am l'fgam by foods that can't become batul

Tosafos says that according to some the heter of ta'am l'fgam (bad flavor) only applies to items that would be nullified in 60x heter to issur, but wouldn't apply to foods that are assur b'mashehu and are never batul. The rationale is a simple one - to permit ta'am l'gam we require 2 concepts: 1. only good flavor spreads issur until 60x, not bad flavors. 2. the minute amount of issur that we consider there to be in the flavor is batul b'rov in the majority of heter. Since we can only permit ta'am l'fgam based on both these assumptions, when the issur is not batul and the second reason isn't applicable we can't be matir foods even if it gives a bad flavor.
Tosafos rejects this logic by differentiating between an issur ma'shehu that falls into the same min, and ta'am l'fgam even when the item of heter and issur is exactly the same. R. Akiva Eiger (gilyon ha'shas) explains the rationale that since Tosafos is working in Abaye that we categorize issurim based on taste rather than name, any issur that gives a bad flavor doesn't have the same taste as the heter and is considered a min b'sheino mino (different item). Therefore, even if the item of issur is identical with that of heter (min b'mino), since the issur gives a bad flavor in the heter, it is always categorized as min b'sheino mino. No bitul is necessary to permit it because the only issur that exists is issur of flavor which is completely lost in the heter and would be permitted even by an issur that has no bitul. However, Tosafos seems to apply this concept even according to the halacha where we pasken like Rava and categorize issurim based on name. R. Akiva Eiger asks, it should follow that when we categorize based on name, even if an issur is ta'am l'fgam that falls into heter of the identical min, it should qualify as min b'mino (since the only distinction is flavor and we don't categorize based on flavor). By min b'mino we forbid the item b'mashehu, therefore we shouldn't be able to permit an item of issur that is nosein ta'am l'fgam that get mixed with an identical item (min b'mino).

Sunday, October 17, 2010

Avoda Zara 64a - Rotzeh Bi'kiyumo

Below is a letter that I wrote a couple of months ago on the sugya discussed in today's daf:
י"ז שבט תש"ע

לכבוד מו"ז הרה"ג יצחק אליהו גפן שליט"א,

אני רגיל ללמד שיעור קבוע כל יום שני וחמישי, וכעת אנו עסוקים במסכת ע"ז סד ע"א בסוגיא דרוצה בקיומו דיין נסך. בגמ' קמבעיא אם עכו"ם שכר לישראל לשבור כלים מלאים יין נסך ולשפכם אם שכרו מותר, מי אמרינן כיון דרוצה הישראל בקיומן של הכלים כדי שירויח בשבירתן שכרו אסור, או דלמא כיון דלמעוטי תיפלה שפיר דמי, ומסיק ישבור ותע"ב. והביא הגמ' ראיה לזה מהא דמותר לישראל לעקור כלאים עם עכו"ם ולהשליכן לאיבוד כדי למעוטי תיפלה, ומפרש הש"ס דאף לרבנן דס"ל דליכא איסור לקיים כלאים וממילא לא שייך כל הענין של רוצה בקיומו, ולא דמי ליי"נ, מ"מ יש צד איסור דקמיירי כשישראל עובד לעכו"ם בחנם והוי איסור של מתנת חנם אליבא דר"י דאוסר, ומדרבי יהודה נשמע לר"ע, כשם שלר"י למעוטי תפלה עדיפא מהאיסור לעבוד בחנם ודוחה אותו, ה"נ לר"ע למעוטי תיפלה עדיפא מרוצה בקיומו של כלאים ודוחה אותו, וה"נ גבי יי"נ למעוטי תיפלה עדיפא מרוצה בקיומו, ותו לא מידי.

והנה, כשחזרתי הביתה עיינתי בספרך החשוב "דליית הכרם" וראיתי שהקשית שם קושיא עצומה. כל הדמיון של הש"ס אינו דומה, שאין הנידון דומה לראיה. מדברי הר"ן בגיטין בשם הרמב"ן למדים דכל האיסור מתנת חנם לנכרי שייך רק כשהוא לטובת הנכרי, אבל לטובת הישראל לא נחשב כמתנת חנם ולא שייך האיסור. לפיכך כיון שישראל עושה כדי למעוטי תיפלה והוא לטובת הישראל להרויח המצוה, תו לא שייך בזה כל האיסור של לא תחנם, ולאו משום דלמעוטי תיפלה עדיפא ודוחה האיסור של מתנת חנם, אלא משום דבכה"ג ליכא איסור מתנת חנם כלל וכלל. וא"כ לא שייך להביא ראיה משם להא דלמעוטי תיפלה עדיפא מרוצה בקיומו גבי כלאים ויי"נ, דכיון דאיסור רוצה בקיומו שריר וקים מי יימר דלמעוטי תיפלה עדיפא מיניה ודוחהו עכת"ד (בגליון הגמ' שלי ציינתי שכבר עמד הגרע"א בחידושיו ע"ז). אמנם כתבת ליישב דאולי יש לחלק דכשישראל העוקר כלאים של עכו"ם בחנם אינו מקבל שום הנאה אישית וישירה מזה, וליכא הרווחא כולי האי מש"ה שייך האיסור מתנת חנם, אלא דלמעוטי תיפלה עדיפא מיניה, ולא דמי לשאר מקומות שמקבל הישראל הנאה אישית וישירה. אכן, בסוף דבריך הקשית על תירוץ זה בטוב טעם, דהארץ שייכת לכל ישראל והוא שותף בארץ ונהנה מעקירת כלאים. ובאמת נראה שהעיקר כסוף דבריך, שהרי לפום ריהטא אינו מובן כ"כ אמאי שייך כל הענין של למעוטי תיפלה בכלאים של עכו"ם. בשלמא ביי"נ שאוסר משום תקרובת ע"ז ורצון התורה הוא שיהא מושבת ומבוער מן העולם שפיר מקרי למעוטי תיפלה, וגם אליבא דר"ע שיש איסור לקיים כלאים נמי ניחא דכיון שהאיסור הוא בקיומו, ביעורו נחשב כמצוה של מיעוט תיפלה. אבל לרבנן דפליגי אדר"ע שכל האיסור הוא רק במעשה זריעת כלאים ותולדותיה, ולא בקיומו, איזה מצוה איכא בלמעוטי תיפלה. מ"מ מבואר בגמ' דמאיזה טעם שהוא קים להו לחכמי הש"ס שכן הוא האמת, דאף לרבנן יש ענין של מיעוט תיפלה, ומסתברא שהטעם כדכתבת שרצון התורה להשבית כל כלאים מא"י. לפיכך שפיר הקשית דכיון שיש מצוה עליו למעוטי תיפלה ולבער כלאים כדמוכח מהא דדוחה האיסור של רוצה בקיומו, הוי טובת ישראל ותו ליכא איסור כלל של מתנת חנם, וחזרא הקושיא לדוכתיה [ובאמת מוכרחין לומר כן, שלא שייך איסור מתנת חנם כשהוא למעוטי תיפלה לטובת ישראל, דאילו אתינן עלה מדין דחיה דלמעוטי תיפלה עדיפא וחשובה יותר ודוחה איסור מתנת חנם, הא איפכא מסתברא, דאיזה מצוה דאורייתא שייך במיעוט תיפלה של כלאים, ואף לר"ע שיש איסור בקיומו, אינו מקיים מצוה בביעורו רק שמסלק ממנו האיסור, ואמאי עדיפא לדחות לאו גמור ד"לא תחנם" לעבור על איסור בידים ובקום ועשה שלא ליתן להם מתנת חנם. א"ו לא שייך כל האיסור מתנת חנם כשהוא למעוטי תיפלה לטובת ישראל].

ומתוך חומר הקושיא נלענ"ד ליישב דכשם שהאיסור מתנת חנם מיתלא תלי וקאי בהענין של למעוטי תיפלה, ובמקום מיעוט תיפלה ליכא איסור מתנת חנם כלל, ה"נ באיסור רוצה בקיומו דמיתלא תלי וקאי בהענין של למעוטי תיפלה כדאבאר. באמת, אינו מובן אמאי שייך איסור רוצה בקיומו בנידון דידן, דבשלמא כשעוסק בשמירת יי"נ וכלאים ואחריותן עליו, הוא רוצה בקיומו ממש שרצונו שיהיו שריר וקים בהחלט, אבל הכא עיקר כוונתו לשבור החביות ולהפסיד היי"נ, ואיזה רוצה בקיומו שייך בזה. וכבר הרגיש רש"י בקושיא זו וכתב בד"ה מי אמרינן, וז"ל דישראל זה רוצה בקיומן של חביות האלו שלא ישתברו עכשיו מאליהם עד שישברם הוא ויטול שכרם עכ"ל, וכן בד"ה אבל עוקרין, כתב וז"ל שלא יעקרו מאליהן עד שיעקרם הוא עכ"ל. באמת הישראל אינו רוצה בקיומו של יי"נ וגם אינו רוצה בקיומו כלאים ומעשיו מוכיחים שאינו רוצה בקיומן מפני שהוא עוסק בידים בביעורם ובאיבודם. אלא שהוא רוצה בקיומו לזמן מועט כגון לשעה או שעתיים עד שנגמר מלאכתו כדי להרויח שכרו בביעורם. ונראה לפרש שהאיסור רוצה בקיומו וגם החיוב למעוטי תיפלה נובע מרצון התורה להשבית ולאבד תקרובת ע"ז וכלאים. וזהו עצם השאלה, דכיון דלא שייך כאן רוצה בקיומו ממש, ורוצה בקיומו הוא רק כדי להפסידו, יתכן דאין כאן איסור רוצה בקיומו כיון שבאמת רוצה באיבודו ורק רוצה לקיומו כדי למעוטי התיפלה ולאבד היי"נ. והשתא, אתי שפיר דהכי קאמר, כשם שלא שייך איסור מתנת חנם במקום למעוטי תיפלה מפני שאין זה מתנת חנם רק לטובת עצמו עושה, ה"נ לא שייך האיסור רוצה בקיומו במקום למעוטי תיפלה שאין זה קיום אלא כעין הכשר מצות איבוד ועיקר דעתו ורצונו לאבדו ולבערו. ואפשר לדייק כן קצת (אף שאינו דיוק חזק) מלשון הרמב"ם (פי"ג מהל' מאכ"א הל' י"ז) שכתב דמותר להשכיר את עצמו לשבר חביות של יי"נ "ותבא עליו ברכה מפני שממעט בתיפלה". ולכאורה הו"ל להרמב"ם להזכיר בהדיא שיש כאן איסור של רוצה בקיומו אלא דלמעוטי תיפלה עדיפא וחשוב יותר. אלא משמע מלשון הרמב"ם דלא שייך כאן איסור רוצה בקיומו כלל "מפני שממעט בתיפלה", כלומר דכיון שעיקר הרצון בקיומו הוא רק כדי למעט התיפלה לא מקרי רוצה בקיומו כלל. ומטעם זה כתבו הש"ס והרמב"ם דתבא עליו ברכה, דסד"א שטעם ההיתר בזה משום שיצא הפסדו בשכרו, אבל מ"מ קצת עבירה איכא כגון תענית חלום בשבת, אלא שלמעוטי תיפלה חשובה יותר מהאיסור רוצה בקיומו. על כן כתבו דתבא עליו ברכה, לרמז שאין סרך איסור בזה כלל וכלל.

שוב מצאתי בספר קהלות יעקב (ע"ז ס' כ"ד) שהביא קושיא הנ"ל בשם הגרע"א בתשובות (ס' קצ"ד) וכן מהחת"ס. לא נחית הגאון בעל הקה"י למה שרציתי לחדש, אלא הלך בדרך שכבשת דרק מפני מצות גדולות אמרינן דליכא לאו דלא תחנם, אבל למעוטי תיפלה אין בה צד חשיבות להפקיע האיסור מתנת חנם אלא דוחהו וממילא אתי שפיר שדוחה גם האיסור של רוצה בקיומו. ואפשר שהניחו לי כל הני רבוותא מקום להתגדר.

נכדיך אוהביך

Wednesday, October 13, 2010

Avoda Zara 61b - Some Q and A on Yayin Nesech

After completing the sugya of Yayin Nesech which contains many details, it is recommended to go through the Chochmas Adam klal 75-77 where he brings all the cases of the sugya and many of them that are discussed in Tosafos down l'maseh (see here).
Here are the basic rules:
1. A goy can make wine assur by: a. touching it with his hand or something else he is holding. b. shaking an open bottle of wine that has a narrow spout. c. ko'ach - causing the wine to move such as pouring it into a cup.
2. Category "a" and "b" are prohibited to even derive benefit but category "c" is only an issur to drink.
3. The ko'ach of a goy (category c) with intent is prohibited to drink, but without intent is permitted to even drink.
4. Rashi holds that goyim nowadays are not truly idolaters and therefore have the status of a child who doesn't comprehend the service of avoda zara and therefore the wine he touches is only forbidden to drink but permitted to benefit from. The Rama rules that we can rely on this opinion in a case of loss. Therefore, in a case of loss, whenever the gemara will say it is forbidden to benefit, it is permitted to benefit but forbidden to drink; whenever the gemara will say forbidden to drink, it is even permitted to drink.

Q and A of some practical questions:
1. What happens if one leaves a bottle of non-mevushal wine in their refrigerator and they have a gentile cleaning lady? A goy cannot do anything to make the wine forbidden so long as it is closed (doesn't have to be sealed) because even "shaking" would not be a concern unless it is an open bottle. Therefore, if a Jew is in the house or can pop in so that the goy is scared to open the bottle, the wine is completely mutar even if the goy moved the bottle around. But, if the Jew leaves the house without sealing (at least one seal) the bottle, we are concerned that the goy opened it to drink (we are concerned for both touching and shaking) and is therefore forbidden to drink even if it is expensive wine.
2. Can a Jew pour non-mevushal wine into a glass being held by a goy? There is no prohibition for a goy to drink wine that he touched but the problem is with the bottle. Tosafos quotes 2 opinions whether "nitzok" - the flow of wine, connects the wine in the bottle with the wine in the glass of the goy. We are machmir for any pouring from a small container which is generally not a significant loss. Therefore, if one pours wine into a glass in the hand of a goy, all the wine remaining in the bottle is assur. Even if the goy finished the wine and there is some residue of wine in his glass when the Jew refills his glass, the wine in the bottle will be assur (unless the drops are batul in 60x by the wine remaining in the bottle).
3. If a goy is given a bottle of non-mevushal wine and opens it, is it assur? So long as he hasn't moved the bottle, only touched the outside of the bottle, the wine is still permitted. BUT as soon as he would move the bottle even on the table (machlokes) and certainly if he would lift up the bottle we are concerned that he will shake it for a.z. and it is therefore assur to get any benefit from that wine. If it is an expensive bottle and a significant loss, it can be sold to a goy. It seems to me that it is still forbidden to gift it to a goy unless you will receive benefit in return because the gifting doesn't compensate for loss and would not justify relying on the opinion of Rashi.
4. If one invites a not religious person who would qualify as a "mumar" (such as someone who learned in Yeshiva and publicly violates shabbos), can we give him wine to drink that isn't mevushal? R. Moshe (o.c. 5:37:8) has a teshuva where he permits wine to be given to him even though he will make it assur the moment he touches it. The heter is based on the concept that we have no source in the gemara to consider a mumar like a goy for this purpose and since the prohibition is predicated on the intermarriage concern, it shouldn't really apply to a mumar who is biologically Jewish. Although the custom is to be stringent about this, it wouldn't apply to an uncommon situation such as this.
5. Can one gift a non-mevushal bottle of wine to a co-worker who is a mumar? Rav Moshe's logic would presumably apply to this situation also. Furthermore, since you aren't handing him issur, rather he is deciding to open it at some point later, it doesn't seem to be a torah prohibition of lifnei iver, rather a rabbinic prohibition of helping someone do an aveira which according to the shach in y.d. (based on tosafos in avoda zara 6b) wouldn't apply to a mumar.

Sunday, October 10, 2010

Avoda Zara 57b - Stam Yeiynam Nowadays - Gentile Wine

The gemara today is the foundation of one of the most fundamental practical leniencies in the rules of yayin nesech. Rav made a statement that a young child who doesn't have "intent" to come into contact with the wine, still renders the wine to be yayin nesech. However, from the story of the goy who touches the wine with his lulav, the gemara proves that Rav never extended the prohibition to an issur of benefit, only an issur to drink. Shmuel made a statement that a slave even after going through a full conversion (mila and tevila), his contact with wine would still render it yayin nesech until the avoda zara is out of his system, which the gemara considers to take 12 months (we find in the context of yi'ush on a lost object and in the gemara at the end of brachos in the context of forgetting the deceased, that 12 months is the time it takes to forget - although in the context of yefas to'ar the ramban explains that some level of forgetting is achieved after just 30 days). The gemara proves from a braisa that both Rav and Shmuel cannot be correct - if we pasken like Shmuel we reject Rav. Tosafos quotes Rabbeinu Tam who paskens like Shmuel (and paskens like the lashon of the saliva and midras being tahor) which compels us to say that the braisa rejects Rav. Since even Rav only considered the wine that a goyish child touches to be assur to drink, the braisa which rejects the stringency of Rav would hold that it is mutar to even drink. Therefore, Rabbeinu Tam should hold that if a child even up to the age of 10 or 11 (which is presumably the age given by the braisa where he understands the worship of idolatry) who touches wine, would not in anyway make the wine assur - it would even be permitted to drink.
Tosafos quotes the Rivan (rashi's son in law) and the Rashbam (rashi's grandson - the son of his other son in law, rabbeinu meir, and older brother of rabbeinu tam) in the name of Rashi that all goyim nowadays who are somewhat removed from idolatry have the status of a child. The rationale for this ruling would be that the fundamental issur on wine to drink is because of intermarriage (36b), just that it was extended to any benefit because of idolatry (Tosafos 29b), therefore in the absence of idolatry the only prohibition applicable is the issur to drink (similar to bishul akum and pas akum). The R"i sent a letter to Rabbeinu Tam saying that combining the p'sak of Rabbeinu Tam with that of Rashi would make obsolete the entire prohibition of stam yeiynam (r"t who rejects rav would permit contact of a child to even drink, and rashi would qualify all goyim as "children"). Rabbeinu Tam responded that he never paskened against Rav's statement that wine which came into contact of a child is forbidden to drink (he claimed to have misquoted by a student). R"T adds that we actually reject the statement of Shmuel, which compels us to pasken like Rav forbidding the wine to drink. But, Rabbeinu Tam confirms the p'sak of Rashi that all goyim are considered like "children". However, the R"i challenges even the p'sak of Rashi because a child who doesn't even intend to touch is not the same as an adult who intends to touch the wine just not so tied to avoda zara. Rabbeinu Tam confirms that there is no obvious proof to Rashi and concludes that any wine touched by a goy should be forbidden to benefit from BUT - ואף על פי כן, לא רצה רבינו תם לאסור הואיל ושפט המנהג להתיר, והנח לישראל שיהו שוגגים ואל יהו מזידין
In conclusion, we don't have any proof to Rashi, but we also don't reject his ruling. Therefore, the very first Rama in Hilchos yayin nesech (123:1) quotes the opinion of Rashi equating all goyim nowadays with the child spoken about by the gemara, and permits benefit from the wine that he touched. But, the Rama rules that one can only rely on this to prevent a loss, but l'chatchila it is forbidden to purchase wine touched by a goy in order to sell. The Gr"a (5) confirms this ruling, since many ge'onim forbid it, it is sufficient to be matir only when there is a pressing need.

Thursday, October 07, 2010

Avoda Zara 55b - Assisting in Doing an Aveira

We previously discussed the issur of lifnei iver, and more specifically the issur of assisting someone in doing and aveira - see here. The dagul m'rvava in his interpretation of the Shach holds that the issur d'rabonon of assisting someone in doing an aveira doesn't apply to one who is intentionally trying to violate (Rav Moshe has a teshuva where he supports the opinion of the dagul me'rvava). Rashi in his commentary on the mishna seems to contradict the assumption of the dagul m'rvava. When the mishna says that one is not allowed to press wine with a Jew who isn't careful about tu'mah because he would be assisting in the violation of causing tu'mah to fruits in E.Y. This doesn't fit in the framework of the D.M. - the Jew who isn't careful with tu'mah is intentionally violating, yet we consider any assistance to be a violation of מסייע ידי עוברי עבירה - supporting one doing an aveira. Furthermore, it seems to be a very different type of assistance in doing an aveira than we typically find. Normally, the assistance is helping prior to the violation thereby enabling the violation (even if he could have done it without assistance), but here the wine is already ta'mei at the time you are assisting him in the pressing. How does that qualify as מסייע ידי עוברי עבירה since the aveira has already been done?
It seems to me that Rashi himself tries to address this issue by writing -
ואסור לסייע ידי עוברי עבירה אלא פורשין מהן כדי שלא ירגיל בכך - Rashi accentuates the concern of encouraging him to continue this practice in the future. Generally, the prohibition of מסייע ידי עוברי עבירה is that you are assisting someone in an aveira that he is about to do. The D.M. holds that this prohibition only applies when he is a person who is unaware of the aveira, but doesn't apply when the person is intentionally trying to do the aveira. The rationale of the D.M. is very simple - there is no violation of lifnei iver because he can do it without me, so the prohibition to be involved emanates from the requirement to prevent Jews from sinning - since he wants to sin and I have no ability to stop him, there is no prohibition in assisting him. This rationale makes sense with the type of מסייע ידי עוברי עבירה that the D.M. is addressing. BUT in our mishna where the prohibition of מסייע ידי עוברי עבירה is not assisting him in the aveira he is about to do, because the aveira is already done - the wine is already ta'mei. The prohibition is not to encourage this practice in the future. Therefore, even if he is intentionally violating, it is prohibited for one to assist him because he is essentially encouraging a practice for the future. The difference between the two cases is that in the D.M. situation there is no harm in assisting him since the aveira would be done anyway, but in our case the harm in assisting him is encouraging a practice that he may be more careful about next time if he realizes that he will have a hard time finding people to help him in his pressing. The type of מסייע ידי עוברי עבירה being addressed in our mishna is more similar to the gemara in gittin 62 which permits telling a goy who is working the land in shemita "your hand should be strengthened". The gemara implies that its permitted to say אחזוקו to a goy since he has not issur to work in shemita, but not to a Jew. This would be a violation of מסייע ידי עוברי עבירה similar to our mishna where you would be encouraging a practice for the future and therefore prohibited to do even if he is intentionally violating.

Wednesday, October 06, 2010

Avoda Zara 54b - Challenge of Philosophers to Avoda Zara

The mishna and gemara elaborate about discussions that took place between philosophers and the chachamim regarding avoda zara and why G-d wouldn't eradicate them if they were truly worthless. The Rambam in his commentary on the mishna launches into an elaborate reiteration of his opinion that all forms of idolatry and magic are powerless and false. One shouldn't believe that they have power but are forbidden, rather they are powerless and all nonsense. The gr"a in his commentary on shulchan aruch rejects this Rambam very strongly because following the approach of the rambam, if one is convinced that they truly possess power they would be drawn after it. Therefore, the Gr"a prefers the safer approach that even if the avoda zara could indeed demonstrate power, one is obligated to reject it. The story between Zonin (who rashi says was a Jew, but the maharsha says was a goy who was willing to admit that avoda zara is nonsense) and R. Akiva 55a seems to support the Rambam. Zonin challenged R. Akiva by asking how the crippled and lame would visit the avoda zara and return healthy. R. Akiva responded that it came time for the suffering to leave and wasn't connected to the avoda zara. This seems to support the opinion of the Rambam because according to the gr"a R. Akiva should have responded that although they have power, we aren't allowed to use that power. There is another story where Rava bar rav yizchok pointed out that the avoda zara seemed to possess the power of rain (for slaughtering human sacrifices it would send rain). R. Yehuda responded by darshening the pasuk - אשר חלק השם אלקיך אותם לכל העמים, that Hashem allowed them to do this in order to destroy them from the world. The Rambam would interpret this that they are misled to think that their sacrifice is the cause of the rain, but the gr"a would interpret that they may indeed have the power to bring rain but that power was only given to them so that the wicked who are drawn after them will err and be wiped out.
There are two stories where goyim challenge the notion of G-d being an א-ל קנא. jealous and vengeful. The philosopher who confronts R. Gamliel (54b) asked why Hashem is has קנאה (jealousy) against those who worship the avoda zara and not the avoda zara itself. But, Agriphas the general who confronts R. Gamliel (55a) asks how Hashem can be jealous of an inanimate object that possess no power - כלום מתקנא אלא חכם בחכם, וגבור בגבור, ועשיר בעשיר. Maharsha explains that there are two forms of קנאה: a. jealousy over an atribute such as wisdom or strength motivated by a desire for that attribute. b. vengeful over the choice of nonsense over something of value. Agriphas made the mistake of thinking that Hashem was actually jealous over the avoda zara itself because He desired it's attributes. R. Gamliel responded that it is not possible because the avoda zara possess nothing that Hashem is missing. Rather, Hashem was zealous and vengeful over the ability of a powerless avoda zara to draw klal yisroel. He wasn't jealous of the avoda zara, but rather angry at klal yisroel for being drawn after something so powerless. However, when the philosopher confronts R. Gamliel he fully understood that Hashem isn't jealous of the attributes of the avoda zara but asked why Hashem takes out his anger against the worshipers and not the actual idol. To that R. Gamliel responds with the parable of a prince who mocks his father by calling a dog by the name of his father - his anger is at his son, not the dog. Hashem doesn't value or give any acknowledgement to the avoda zara, and therefore ignores it even when he lets out His anger (as he demonstrated from the fire that burned all the homes but not the church). Hashem only values the Jews and takes out his wrath on them for worshiping the avoda zara, while ignoring the avoda zara itself.

Tuesday, October 05, 2010

Avoda Zara 54a - Exemption of O'nes

The gemara tries to figure out the case where one violates avoda zara "b'oneis" and the consequence is that the item assumes a status of being worshiped. In the course of the discussion there are three issues which arise for avoda zara that is worshiped by force: a. is it permitted? b. even if not permitted, does one deserve capital punishment for violating. c. what is the status of the item that was worshipped?
1. Rami Bar Chama suggests that the case of being forced to commit avoda zara would be where Reuven forces Shimon to worship an item belonging to Shimon. Tosafos explains that we are speaking where Reuven is holding a gun to Shimon's head and threatening him. We would then consider the act of Shimon to be serving avoda zara, just that it is by force. However, if Reuven was physically pushing Shimon down to bow his body in front of the avoda zara, we don't regard Shimon as doing any action at all and therefore don't require a pasuk that exempts o'neis to explain why the item doesn't become assur.
2. Rav Zeirah rejects this based on the concept we learn out from a girl being raped - ולנערה לא תעשה דבר - because the Torah exempts for o'neis. The gemara is assuming that just as the worshiper wouldn't deserve capital punishment for a crime he committed by being forced, the item wouldn't assume a status of being worshiped (and assur as a ne'evad).
3. Rava answers that we find a distinction between private and public. Tosafos explains that Rava seems to be throwing in extra information by following an opinion that one must give up their life for avoda zara if he is being forced into a public violation but not for a private violation. This doesn't seem to directly address the problem raised by rav zeirah. Rav Zeirah asked his question based on the assumption that one should have to sacrifice his life even for avoda zara being committed privately, yet since he wouldn't receive capital punishment, the avoda zara shouldn't become assur. Rava doesn't seem to be addressing this issue. Tosafos explains that Rava is trying to make the braisa work even according to the opinions that one must only give up their life for public violations, not for private violations. However, Rava's answer is really just undermining the premise of Rav Zeirah. Rav Zeirah assumed that the status of something becoming assur as avoda zara should be dependent on whether he deserves capital punishment. Rava disagrees and holds that it is dependent on whether the person was allowed to violate - if it was assur to violate then the item would assume status of avoda zara, even though he isn't chayev misah.
The gemara assumes that when Reuven forces Shimon to worship avoda zara, the item becomes assur since shimon should have given up his life and avoided worshiping the avoda zara. Meaning, we regards shimon's act to be an act of worship, just that he was forced to do the act. The difficulty with this approach is that by definition avoda zara entails the acceptance of the item as a deity. If Shimon is forced into worship, he doesn't even regard the item as a deity. Rather than exempting Shimon because of "o'neis", we should exempt him for not doing avoda zara. Furthermore, since this doesn't qualify as avoda zara, the item worshipped shouldn't become assur - why does it? The gemara seems to hold that both in regard to the obligation of the worshipper and even in regard to the item worshiped, we disregard the intention of the worshiper and merely look at the appearance of the act. So long as the act looks to the naked eye as avoda zara, we consider the worshiper to be doing an aveira and even place an issur on the item worshiped, despite his intentions of not accepting it as a deity.

Avoda Zara 53b - When Did E.Y. Become Ours?

The very first and one of Rashi's most famous commentaries on the Torah is that the Torah began with parshas breishis to establish the claim of the Jews to the land of Israel - כל הארץ של הקב"ה היא, הוא בראה ונתנה לאשר ישר בעיניו, ברצונו נתנה להם, וברצונו נטלה מהם ונתנה לנו
But, it is not clear at what point in history are we considered to have taken ownership of Eretz Yisroel. See this post where I once explained the argument between the shepherds of Avrohom and Lot. They both could have held that ownership was at the point where Avrohom made a "chazaka" on EY, even before we actually conquered it. Our gemara strongly supports this view. The gemara says that the asheira trees in E.Y. had status of Avoda Zara, but the gemara doesn't understand why since the Jews "owned" E.Y. from the time of Avrohom - ירושה היא להם מאבותיהם, so the goyim shouldn't have had the ability to make it assur since אין אדם אוסר דבר שאינו שלו? The gemara responds that at the point when the Jews sinned by the golden calf they indicated that they were interested in the worship of the idolatry in E.Y. Clearly, the gemara holds that E.Y. belonged to klal yisroel from the time of Avrohom, even before they actually conquered it. This is also the approach of the Ramban in parshas lech lecha (bris bein ha'besarim) - אמר הכתוב בפעם הראשונה לזרעך אתן בלשון עתיד וכן בשנית כי עד הנה לא נתנה אליו כולה ולפיכך אמר לו אתננה אבל בשלישית בשעת הברית אמר לזרעך נתתי לאמר שיכרות לו ברית על המתנה שכבר נתן לו וכן בעת המילה כשאמר "לאחזת עולם" אמר לו "ונתתי לך" בעתיד ורש"י כתב לזרעך נתתי אמירת הגבוה כמו שהיא עשויה ואין צורך במקום הזה - The approach of the Ramban is that Hashem had already actually given E.Y. to Avrohom's descendants, unlike Rashi who says that Hashem's promise is as good as done.

Monday, October 04, 2010

Avoda Zarah 52b - Beis Chonyo (Onias) - Bitul Avoda Zara

In the last perek of Menachos chazal assume that Chonyo (onias) was the son of Shimon Hatzadik who was chased out of Jerusalem in the time of the Second beis hamikdash because of an issue with his brother - one set up the other and resulted in chonyo being chased out) and erected a Temple in Alexandria, Egypt. Chazal debate whether Chonyo's intentions were l'sheim shamayim and the Temple was serving Hashem, or whether it was a hous of idolatry. Either way he was seriously misguided and doing an aveira so that chazal penalized all kohanim that worked in his Temple not allowing them to ever work in the Beis Hamikdash. Our gemara questions whether this penalty was only imposed on people or even on objects that were used in the Temple of Chonyo.
I found on wikipedia that Josephus writes that this Temple wasn't actually in Alexandria but rather in Leontopolis, Egypt. Chonyo supported and justified this Temple by citing pesukim in Yeshaya 19:18 indicating that there will be a Temple and miz'beiach in Mitzrayim on which sacrifices will be brought.
In the course of the sugya, the gemara introduces a concept of ובאו בה פריצים וחללוה which is actually a halachic concept that when the Greeks violated the Beis Hamikdash in the time of the Chashmonaim, they successfully removed the kedushas ha'makom of the mikdash. It is based on this concept that the stones of the miz'beiach actually obtained status of משמשי עבודה זרה. If the stones remaing "owned" by hekdesh, they couldn't actually become avoda zara because one cannot make into avoda zara something that is not theirs. But, since they successfully removed the kedusha status and the mizbeiach became chulin, they were able to acquire it and turn it into משמשי עבודה זרה. The Ritva in Makos 19a says that the opinion that the gemara mentions in many places about the kedushas yerushalayim being nullified is based on this concept of באו בה פריצים וחללוה. The Ritva understands that they had the ability to not only remove kedusha from the stones of the mizbeiach but even from the city of Jerusalem. The Chasam Sofer (Y.D. 233) and Ohr Sameiach use this concept to explain why we mourn on the 9th of Av rather than the 10th, since R. Yochanan says that most of the mikdash burned on the 10th. The answer is that the first moment that it was lit was the point that the kedusha left because באו בה פריצים וחללוה, so that is what we mourn.
The gemara continues by saying that the chachamim weren't sure what to do with the stones of the mizbeiach. One suggestion was to break them in order to be mevatel them (rashi), to which the gemara says that it was forbidden to use stones that weren't perfectly smooth. The gemara implies that it is impossible to be mevatel avoda zara without physically breaking it, otherwise that would have been a good suggestion. However, the Rama (y.d. 146:7) writes in the name of the Mordechai that bitul can be achieved by speech without actually physically damaging the avoda zara. The mekor mayim chaim (side of shulchan aruch) asks from our sugya and explains that a goy can be mevatel by mere speech, but a Jew can only force a goy to be mevatel if the goy actually breaks it. It is clear from the gemara 44b that one doesn't need to physically damage the avoda zara in order to be mevatel it, because the gemara says that if one would urinate in front of it b'kvius, it would also serve as a bitul. But, the gemara implies that an action would be necessary - although it could be that an action that is degrading such as setting it up as a place to urinate works as bitul automatically even without explicitly being mevatel it. Even the mishna 49b which implies that an action must be done to ruin it isn't conclusive because the mishna is trying to contrast the removal of pieces from the avoda zara for it's good which doesn't qualify as bitul. However, Rashi 42a d.h. she'pachsa, seems to hold that one must cause physical damage to the avoda zara to successfully be mevatel it (the gemara seems to require at least "pach'sa" which means to dent it, even when a goy is mevatel it).