Monthly Archives: August 2015

Shiluach Hakan and the Importance of Living in the Moment

This week’s alumni dvar torah is by Aron Wolgel

This week’s Parashah contains one of the most curious mitzvotshiluach hakan:

כִּי יִקָּרֵא קַן־צִפּוֹר לְפָנֶיךָ בַּדֶּרֶךְ בְּכָל־עֵץ אוֹ עַל־הָאָרֶץ אֶפְרֹחִים אוֹ בֵיצִים וְהָאֵם רֹבֶצֶת עַל־הָאֶפְרֹחִים אוֹ עַל־הַבֵּיצִים לֹא־תִקַּח הָאֵם עַל־הַבָּנִים: שַׁלֵּחַ תְּשַׁלַּח אֶת־הָאֵם וְאֶת־הַבָּנִים תִּקַּח־לָךְ לְמַעַן יִיטַב לָךְ וְהַאֲרַכְתָּ יָמִים

“If you happen to come upon a bird’s nest along the way, in any tree or on the ground, with young ones or eggs, and the mother sitting on the young or on the eggs, you shall not take the mother with the young; You shall send away the mother, and [then] you may take the young for yourself, in order that it should be good for you, and you will lengthen your days.״ (Deut. 22:6-7)

Rambam and others identify this mitzvah as an opportunity for us to practice our compassion and sensitivity (by not taking the mother with the young), even though we may not know G-d’s exact rationale.

We can also unlock new understanding by highlighting a key word in the first phrase, baderekh, “as you are on your way.” Meaning, this mitzvah is not something that we can seek out; rather, it is an opportunity that presents itself by chance, while we are engaged in other pursuits (Rashi, citing Sifrei).

Thus, at the core of this mitzvah is the concept of acknowledging the present by paying attention to what is in front of us. According to the verse, we are not meant to search for nests, but we are meant to identify them and recognize their significance when they appear before us.

By fulfilling this mitzvah, verse 7 promises “ve-ha’arachta yamim” our days will be lengthened. This is not a literal promise of longer life (Do x in order to get y); instead, this mitzvah leads to a life of substance. (In doing x, y happens as a by-product) The lengthening of days here refers to a living of fulfillment. Each day becomes longer as it is imbued with deeper meaning.

The lesson of this verse pair is extremely valuable to counter a society that drives in a direction of quick movement in every way – immediate responses to text messages, hurrying to appointments, and drowning in a life of over-scheduled commitments as we rarely look up from our screens.

In fact, the gemara cautions about taking psiot gasot “large steps,” with a warning that these large steps cause blindness (BT Shabbat 113b). When we allow ourselves to fixate on our next destination, everything we have on our schedule, every place we have to get to, we become blind to the world immediately surrounding us.

Furthermore, the idea of “being present” is reinforced by pausing from our busy week to observe the Shabbat candles during kiddush, as this act restores our eyesight (Rema, Darchei Moshe 271:8, citing Maharil).

May we allow ourselves to be “present” in each moment for the rest of the week, noticing the opportunities around us, undistracted by whatever obligations direct us “on our way.” This awareness of the present will ultimately prepare us to accept the bracha of Shabbat as a time of recognition, holiness, and peace. Shabbat Shalom.

Aron Wolgel (SBM 2009) teaches Judaic Studies at the Frankel Jewish Academy in West Bloomfield, MI. He is continually inspired by his wife Ariel and their 4 month old twins, Betzalel and Maayan

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Week Two Summary of Midreshet Avigayil

by Tzipporah Machlah Klapper, Midreshet Avigayil Participant

*The Center for Modern Torah Leadership is excited to be running our first-ever intensive Talmud program for teenage girls. Below you will find a summary of their second and final week of shiur.

This week we’ll discuss some of the issues raised by rishonim about our sugya. (Please stay tuned for our video teaching the sugya itself, coming soon to YouTube!)

A rubric for understanding this summary of the sugya:
Bold represents the relevant part of the gemara.
Italics represent the question asked by the rishonim.
Underlining represents our comments on the section.

Our sugya presents an Amoraic dispute as to whether a Rabbinic legal decision can compel someone to violate Torah law. The Rabbinic phrase for this is “The Sages do/don’t have the power to uproot a Torah matter.”

1. One of the cases brought to prove that the Rabbis can uproot something from the Torah is a dispute between Symmachus, who is citing Rabbi Meir, and the Sages regarding the case of a non-kohen who eats tahor terumah, which should have been available for a kohen to eat. The gemara concludes that he must replace the eaten terumah by taking terumah again from tahor produce; if he takes the replacement terumah from tamei produce, which cannot be eaten by anyone if made terumah, his repayment does not count and he must do it yet again.

2. The gemara assumes that according to Rabbi Meir, this means that the non-kohen gets his failed repayment back, and it is not considered terumah.

The gemara asks: How can this be so, if the Rabbis cannot uproot something from the Torah?! The repayment works under Biblical law (deoraita), and so it becomes the property of the kohen. Therefore, if the kohen takes the tamei terumah and betroths a woman with it, she is married under Biblical law. Yet the Rabbis declare that it is not the property of the kohen, and therefore that she is not married and may marry whom she pleases. They permit this woman – who is Biblically married – to the world!

Question: Why is the case this complicated? Can’t the gemara just ask about the ramifications of a non-kohen eating terumah?

Answer: Tos. Yeshanim (cited as R”I in Tos.): Perhaps the gemara’s initial assumption was not, as we thought, that the non-kohen gets his failed repayment back as chullin. Perhaps it is terumah, but the kohen has no part in it.

This is a not a strong answer. We discussed the idea that Tosfot is more interested in demonstrating that contradictions are soluble than in solving them.

Question: Tos. (answer cited as R”I): But isn’t the marriage case easily soluble? The Talmud previously stated that when the Rabbis transfer property from its owner under Biblical law, this is not considered uprooting a Torah matter!

Answer: No, because hefker beis din hefker (the principle that a Beit Din has the power to reassign money and property ownership) works only when the person from whom beit din is taking the money has sinned. Here, what sin has the Kohen committed?

We wondered why Tos. doesn’t just bring up afk’inhu (the principle that Beit Din can nullify marriages, which the Talmud also says is not considered uprooting the Torah), since the mechanism of hefker beit din hefker is both indirect and unconvincing as an explanation of why the marriage in this case is invalid.

We thought that perhaps here hefker beit din hefker really means afk’inhu, since retroactively transferring ownership of the marriage ring is the standard mechanism for afk’inhu. This would be an unusually clear-cut case, since the money here can be transferred immediately rather than retroactively. R”I’s definition of hefker beit din hefker would then be a comment about afk’inhu as well – it cannot be used without fault on the part of the man whose attempt to marry is denied.

3. A beraita the gemara cites as a potential proof discusses a navi (prophet) who tells “you” to violate one of the mitzvot in the Torah, like Eliyahu on Har HaCarmel ordering animal sacrifices outside the Temple. You must listen to everything he says, according to the hour.

Question: But perhaps the case of Eliyahu is different, since his action on Mount Carmel were directly commanded by G-d?

Note that this is not, as one might assume at first glance, a question on the proof-text; it does not challenge the beraita’s derivation from Eliyahu that one must obey prophets when they command you to violate Torah law. Rather, it is a question on the Talmud’s use of this text as evidence that rabbis can uproot something from the Torah. Rabbis and prophets can be compared so long as prophets are using their own reasoning; if their power to uproot Torah applies only when G-d directly commands that uprooting, the Talmud cannot derive Rabbinic power from them. (This point is made explicitly in a parallel Tos.)

Answer: Tos. Yeshanim: The text says that you should listen to the prophet according to the hour – this means that we are discussing even cases in which he is not acting under specific Divine instructions. If he were acting under specific Divine instructions, why would the hour matter? You should always listen.

Answer: Tos.: If a navi can violate the Torah at G-d’s direct command, then that navi must also be able to violate the Torah without it, because prophets are not allowed to make new legal claims on the basis of their prophecy.

Question: Perhaps Eliyahu was different because his status was empirically verified (muchzak), on the basis of previous predictions coming true? If so, there is no parallel way to verify rabbinic status, and so we cannot derive rabbinic power from prophetic power!?

Answer: Tos. Yeshanim: The text says, “navi” (this is a text we do not have) – therefore, any navi (even unverified), and therefore also Rabbis.

Answer: R”I in Tos.: Even an unverified prophet (and therefore also rabbis) can order a violation of Torah law to meet the needs of the hour. However, Eliyahu ordered the violation on the basis of his prediction that this would be followed by miracles (which would meet the needs of the hour). Only a verified prophet can demand obedience on the basis of a prediction.

Question: Perhaps “according to the hour” means that orders issued by neviim don’t last! If so, how can this be brought as a proof that the Rabbis can issue lasting legislation, as in our terumah case?

Answer: Ramban: “According to the hour” really means “in accordance with the issues of the hour”, even if the hour lasts millennia. All legislation passed by the Rabbis is such. “According to the hour” is intended only to exclude the case of a navi who says that God has changed His mind about a mitzvah and no longer wishes you to observe it – you are not allowed to listen.

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Week One Summary of Midreshet Avigayil

by Rivital Singer and Batsheva Weinstein

In Midreshet Avigayil, we are learning to analyze a text by first picking out the keywords that form the structure. Then, knowing how the sugiya is built, and the general way in which the gemara will reach its conclusions, it becomes easier to understand the details and their importance to the sequence. Another technique we use is reading the text with Rashi’s commentary inserted throughout. We talked about how when Rashi is commenting on the mishnah and throughout the gemara, he is not necessarily giving us his opinion, but rather preparing us for the continuation of the gemara. He does this by making sure we notice the confusing things that the gemara will later try to resolve, giving us spoilers about the gemara’s interpretation in places where he thinks we may get stuck trying to understand, and leading the reader to believe things that the gemara will see as a הוה אמינא so that they are in the right mind to read the gemara.

This week we learned the first sugiya in the tenth chapter of Masechet Yevamot, which opens with the case of a woman whose husband is missing and who has some form of evidence that he is dead. Based on this evidence, she marries another man. The mishnah deals with the ramifications of the first husband returning. There are four cases brought in the mishna, each with different forms of evidence (one or two עדים), and different levels of בית דין involvement in accepting the evidence (checking the עדים or stating directly that the woman should remarry).

The gemara starts by quoting the second case in the mishnah, “נשאת שלא ברשות מותרת לחזור לו”. It can be inferred from the fact that this case refers to a woman who was “נשאת שלא ברשות” (which, Rashi adds, is a case in which רשות ביד דין is not necessary since there are two עדים) that in the first case in the mishnah, “אישה שהלך בעלה למדינת הים…”, we are referring to a case in which there is one עד and רשות בית דין. Being great תלמידי חכמים, we all know that this is a little strange. Usually, sufficient evidence can only be brought by two עדים!?

On this exciting note, we pause to take you into our beit midrash and walk you through the steps of understanding a sugiya through its structure.

We learned to try and first notice statements that were made by Amoraim, as we know that the goal of the sugiya is to try and recreate their thought process. The one Amoraic statement in our sugiya is “אמר ר’ זירא מתוך חומר שהחמרת עליה בסופה הקלת עליה בתחילה”: Due to the stringencies that we may later impose on the woman, we are more lenient in letting her remarry (the gemara will continue to question this claim, and bring another explanation). Knowing the end goal of the gemara will help us to understand each step of the discussion. As we continue, keep R’ Zeira’s statement in mind.

Now let us return to our עד אחד and the mystery as to why his statement is considered sufficient evidence (we know you’ve been holding your breath, just waiting to find out! ;).

In order to try and prove that עד אחד can be sufficient, we bring two other cases in which עד אחד is believed, from which we may be able to derive that we believe עד אחד in this case as well. We first mention how when proving marriage, we believe עדות based on hearsay, even with women and slaves, who are usually פסולי עדות. We then bring a case in which one עד saw someone eat חלב and tells them in court. The accused then denies having eaten חלב, and is פטור from bringing a קרבן. Based on this case we say that עד אחד must be believed דאורייתא, since the fact that the mishna mentioned that the accused man denied his action clearly indicates that had he not done so he would have been חייב, meaning the עד אחד would have been believed.

However, the gemara concludes that the sufficient evidence in this case might be the accused man’s silence rather than the testimony of the עד אחד, and really this case proves only that silence in the face of an accusation can have the same legal status as a confession.

Having failed to prove that עד אחד is נאמן דאורייתא based on a פסוק, we now try to say that it is instead a סברא, as on the basis of סברא we believe an עד אחד who tells us that a piece of fat is kosher שומן rather than nonkosher חלב. Rashi says that the סברא is that if food had needed two עדים while being made in order to be considered kosher, no one would ever eat at anyone else’s house (and that would be CRAZY!). We then ask how we can compare the case of חלב to the case of אישה seeing as before the witness testifies, we don’t know for sure if the food is kosher or not, but we do know for sure before the witness testifies that the woman is an אשת איש.

We suggest that our case should instead be compared to a piece of meat that you are certain is חלב, but then one witness claims it is not. In that case the one witness is not believed, so perhaps this demonstrates that there is no סברא to believe one witness regarding a husband’s death. But the gemara argues that this case is also not comparable to our Mishnah, since the status of the meat cannot ever change – once treif, always treif – whereas the woman’s status can change from wife to widow.

Seeing now that the issue of חלב/שומן does not generate a case that can be compared to the אישה עגונא, we bring three other cases in which there is also a חזקה that something is אסור (the same way there is a חזקה that the woman is an אשת איש and therefore אסורה to other men), and yet עד אחד is sufficient evidence to permit the object. The cases are טבל, הקדש and קונמות, all of which are אסור to use. We dismiss all three cases, however, as they are generally situations that can be easily fixed (the prohibition can be removed) by their owner. Whenever they cannot be fixed, the Talmud says, perhaps the testimony of an עד אחד is not sufficient.

We finally get to R’ Zeira’s answer, which is that theoretically עד אחד should not be sufficient evidence מדאורייתא to permit the woman to remarry, but since we have made the ramifications of the woman’s second marriage (if the first husband turns up alive) so harsh (for example, we forbid her permanently to both husbands as if she had committed adultery deliberately), we are able to be more lenient by allowing her to use the testimony of one witness. The gemara then asks why couldn’t we have just not been particularly harsh or lenient at any point in the case. The answer is that the reason we wanted to be particularly lenient is because we are dealing with an עגונא and we want to be as nice to her as possible (we want to make sure that if her husband is truly dead, she can remarry), and we can’t do this without adding the harsh ramifications, which lead the woman to be extra cautious and מדייק when trying to claim her husband is dead.

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The Responsibility of Tzedakah

This week’s alumni dvar torah is by Judah Kerbel

דברים פרק טו

ז) כִּי יִהְיֶה בְךָ אֶבְיוֹן מֵאַחַד אַחֶיךָ בְּאַחַד שְׁעָרֶיךָ בְּאַרְצְךָ אֲשֶׁר יְקֹוָק אֱלֹהֶיךָ נֹתֵן לָךְ לֹא תְאַמֵּץ אֶת לְבָבְךָ וְלֹא תִקְפֹּץ אֶת יָדְךָ מֵאָחִיךָ הָאֶבְיוֹן

ח) כִּי פָתֹחַ תִּפְתַּח אֶת יָדְךָ לוֹ וְהַעֲבֵט תַּעֲבִיטֶנּוּ דֵּי מַחְסֹרוֹ אֲשֶׁר יֶחְסַר לוֹ

ט) הִשָּׁמֶר לְךָ פֶּן יִהְיֶה דָבָר עִם לְבָבְךָ בְלִיַּעַל לֵאמֹר קָרְבָה שְׁנַת הַשֶּׁבַע שְׁנַת הַשְּׁמִטָּה וְרָעָה עֵינְךָ בְּאָחִיךָ הָאֶבְיוֹן וְלֹא תִתֵּן לוֹ וְקָרָא עָלֶיךָ אֶל יְקֹוָק וְהָיָה בְךָ חֵטְא

י) נָתוֹן תִּתֵּן לוֹ וְלֹא יֵרַע לְבָבְךָ בְּתִתְּךָ לוֹ כִּי בִּגְלַל הַדָּבָר הַזֶּה יְבָרֶכְךָ יְקֹוָק אֱלֹהֶיךָ בְּכָל מַעֲשֶׂךָ וּבְכֹל מִשְׁלַח יָדֶךָ

יא) כִּי לֹא יֶחְדַּל אֶבְיוֹן מִקֶּרֶב הָאָרֶץ עַל כֵּן אָנֹכִי מְצַוְּךָ לֵאמֹר פָּתֹחַ תִּפְתַּח אֶת יָדְךָ לְאָחִיךָ לַעֲנִיֶּךָ וּלְאֶבְיֹנְךָ בְּאַרְצֶךָ

(7) If there be among you a needy man, one of your brethren, within any of your gates, in your land which the LORD thy God gives you, you should not harden your heart, nor shut your hand from your needy brother;

(8) but you should surely open your hand for him, and should surely lend him sufficient for his need in that which he lacks.

(9) Beware that there be not a base thought in your heart, saying: ‘The seventh year, the year of release, is at hand’; and your eye be evil against your needy brother, and you give him nothing; and he cry to the LORD against you, and it be sin in you.

(10) You should surely give him, and your heart should not be grieved when you give him; because for this thing the LORD your God will bless you in all your work, and in all that you put your hand to.

(11) For the poor will never cease out of the land; therefore I command you, saying: ‘You should surely open your hand for your poor and needy brother, in your land’. (Devarim 15:7-11, JPS translation).

Taken in isolation, these verses discuss the general mitzvah of tzedakah. In fact, Rambam cites these verses as the source for many of the laws of tzedakah (see Hil. Matanot Aniyim 7:1-3, 13). There is a mitzvah to provide the poor with their needs, and this should be done with a positive attitude. Acting miserly towards the poor is strongly prohibited.

However, these pesukim appear in the context of shemitat kesafim, the nullification of loans at the end of the shemitta year.  In context, the simple meaning of the verse is narrow: a person has an obligation to be generous in giving loans even when shemittah is approaching. This is further supported by verse nine, which warns that one should not be stingy out of concern regarding the approaching shemitta year. Why then does halakhah use these verses to establish the general laws of tzedakah?

If tzedakah were taught in isolation, we might think of it as an investment; give to the poor in order so as to create a social safety net for yourself, so that others will do the same for you.  Tzedakah would always be an implicit loan.  But while a loan by definition implies that the lender will eventually be paid back, shemitat kesafim transforms loans into tzedakah, and thus teaches us that tzedakah  should not be thought of as an investment.  

The Torah acknowledges that it is natural for people to resist giving out loans knowing that they may not be paid back fully. Nevertheless, when there are people in the community in need, those with means have a responsibility towards them, and the  Torah calls upon them to accept this responsibility.  Sometimes it is possible to help people and be repaid in return; sometimes that is not possible.  This must not dissuade people from assisting others, which is what justice demands.

Verse nine identifies one who does not feel this demand of justice as בליעל.  This term appears again later in our parasha, in Devarim 13:14. In that context, people who are בני-בליעל entice (מסית) the residents of their cities to engage in avodah zarah. Rashi explains that בני-בליעל are people who are בלי עול, שפרקו עולו של מקום – They have shrugged off the yoke of Heaven and feel no obligation.  Perhaps those who who refrain from helping others are בליעל in the same way – not only do they stray, they cause others to stray due to their lack of sensibility.

The Gemara  makes a different connection between the mesit and one who fails to give tzedakah, saying that one who turns a blind eye from someone in need of tzedakah is as if he has done avodah zarah (Ketubot 68a). I suggest that the commonality between these two is that one who does not feel the yoke of responsibility by definition cannot be linked to the G-d of B’nei Yisrael.  Whether it’s a matter of obligations towards G-d or obligations towards other people, one who casts away that obligation, a בליעל, is not walking in the way of G-d.

With the shemitta year ending and the Yamim Noraim approaching, although we now use the prozbul mechanism to allow Beit Din to collect loans, let us hear the call to help those in need and be grateful for the spiritually rewarding opportunity to give without the condition of receiving in return.

Judah Kerbel (SBM 2015) is beginning his second year at RIETS and his first year at the Bernard Revel Graduate School, concentrating in medieval Jewish history.

 

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2015 Summer Beit Midrash Shayla

by Rabbi Aryeh Klapper

*Here is the full-text of the shayla that Rabbi Klapper gave the 2015 Summer Beit Midrash fellows to answer. Stay tuned for Rabbi Klapper’s teshuva, which we’ll post online next week!

BARGAINS is a chain of for-profit thrift shops. It is owned by a private corporation whose sole and equal shareholders are Mara Spade, a Jewish woman with growing halakhic sympathies, and her non-Jewish business partner Samuel Hammett. For reasons that have become increasingly esoteric over the years, the corporation’s symbol is a peregrine in silhouette.

BARGAINS has been expanding tremendously in recent years, and where BARGAINS’ gleaming emporia go, other thrift shops tend to wither. BARGAINS offers more consistent quality, better selection, longer hours, and generally sets its prices slightly lower than any major competitors, which it can afford because of its economies of scale and large capital reserve. Some online critics have also claimed that it benefits from a false impression that donations of goods to BARGAINS stores are fully tax-deductible. Although it is not clear that BARGAINS is responsible for this impression. BARGAINS is currently the only significant chain of its type.

Mara is responsible for developing new stores and is responsible for all stages of the process from selecting a location through the Grand Opening. She is currently scouting locations in Western MA. The only nearby Orthodox shul is the Young Israel of Dayberry, which is hosted by the Barney Fife Jewish Center. BFJC also hosts Modest Requirements, the Young Israel’s Thrift Shop. Mara has been looking at houses near BFJC and expects to rent one for her family (husband and four kids) soon.

Modest Requirements is open Mondays – Thursdays from 10 – 6 pm and is staffed entirely by Gladys Blueoat, a 60 year old member of Young Israel with no family other than her 12 tomcats. Gladys is paid $18 an hour for the job, which together with her late husband Warren’s life insurance, enables her to live at roughly the lower-middle-class standard of living she enjoyed during their thirty-year marriage. The salary is rather high for the nature of the work, and some complaints about this have occasionally been raised, but the store nonetheless contributes significantly to the shul’s budget, and most of the administration views this as a dignified form of communal tzedakah.

Mara so far has found two possible locations for the new BARGAINS store. The first is some thirty miles down the highway in Wolomolopoag; it will mean a long commute for Mara, but is unlikely to draw business away from Modest Requirements. The second is in the very same mall as BFJC, and is attractive among other reasons because of the traffic BFJC generates.

Mara subscribes to the CMTL Weekly Dvar Torah, and the 2015 weekly summaries of SBM learning have made her wonder whether it could be Jewishly permissible for BARGAINS open its new store in Dayberry. For that matter, she realizes that the opening of every BARGAINS store has driven thrift shops like Modest Requirements out of business. Is she halakhically or ethically required to change BARGAINS’ entire operating model, or to sell her share? Does she owe damages to the beneficiaries or employees of those shops? She approaches the rabbi of YID, Rabbi Milton Friedman shlit”a, who refers her question to you.

Rabbi Friedman adds his own question: If you rule that Mara may or should not open a BARGAINS in Dayberry, and she does so anyway, how should he and the shul react when she applies for membership?

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Uniformity and Diversity in Halakhah

by Rabbi Aryeh Klapper

Among the more famous passages in the Talmud is the following from Eruvin 13b:

:אמר רבי אבא אמר שמואל

.שלש שנים נחלקו בית שמאי ובית הלל – הללו אומרים הלכה כמותנו; והללו אומרים הלכה כמותנו

יצאה בת קול ואמרה: לו ואלו דברי אלקים חיים הן, והלכה כבית הלל

?וכי מאחר שאלו ואלו דברי אלקים חיים, מפני מה זכו בית הלל לקבוע הלכה כמותן

מפני שנוחין ועלובין היו, ושונין דבריהן ודברי בית שמאי

ולא עוד, אלא שמקדימין דברי בית שמאי לדבריהן

Said Rabbi Abba said Shmuel:

For three years Beit Hillel and Beit Shammai disputed – these said “The Law follows us” and these said “The Law follows us.”

A Heavenly Voice emerged and said: “These and those are the living words of

G-d (or: the words of the Living G-d), but the law follows Beit Hillel.

But since these and those are the living words of G-d, why did Beit Hillel merit having the Law established as following them?

Because they were pleasant and forebearing, and taught their own words and the words of Beit Shammai.

Not only that, they put the words of Beit Shammai before their own.

This passage can be interpreted as follows: The full truth of G-d’s Torah is beyond human understanding, and therefore positions that appear radically distinct or even polar opposites to our limited comprehension may both be genuine and true interpretations of Torah. However, in the realm of action, opposites cannot be tolerated—the Law must follow somebody, after all—and thus a Heavenly voice emerged to declare that the law followed the House of Hillel.

But that the Halakhah was eventually decided does not mean that it was necessary for it to be decided. In other words: rather than understanding this passage to say that:

a) a decision being necessary, Beit Hillel’s position was chosen because Beit Hillel were of superior relevant character, we can understand it to say that

b) no decision was necessary, but when it became clear that Beit Hillel were of superior relevant character, it became possible to choose their position.

One can make a similar point along a different axis. The passage can be interpreted to say that:

a) In general, halakhic disputes involve a right and a wrong position, and psak halakhah, legal decision-making, involves choosing the right position over the wrong. In such cases only the right position is truly the living word of G-d, or at least the right position is somehow more the living word of G-d than is the wrong one. The dispute between Beit Shammai and Beit Hillel was unusual in that it involved conflicting positions of precisely equal truth, and thus it took a Heavenly voice to resolve it, and on grounds of character rather than of truth.

I suggest the following alternative:

b) Many, perhaps most, halakhic disputes involve conflicting positions each of which are genuinely the living word of G-d, although this may not be recognized by the disputants. Ordinarily, there is no reason to resolve such disputes; rather, each person can follow their own reasoning, if they are competent halakhic reasoners, or else follow the psak of their rabbinic authority, or under some circumstances follow the dictates of conscience. The dispute between Hillel and Shammai was unique not because both sides were equally “true,” but rather because G-d found it necessary to Divinely resolve a dispute between sufficiently true positions. (I plan iyH to explain that necessity in a future dvar Torah.)

Each of the readings I propose carries the implication that diversity of halakhic practice is a perfectly acceptable halakhic outcome; there is no need for every Jew to practice exactly the same halakhah. When practical conflicts arise—e.g. when food held to be kosher by one is served to another who holds it non-kosher—we should disclose the issue to each other, as the Talmud suggests Beit Hillel and Beit Shammai did with regard to marriageability when their halakhic positions conflicted. This precedent implies that diversity of psak is possible even with regard to personal status issues, so long as there is genuine trust—and perhaps even when the parties do not recognize each other’s positions as halakhically legitimate.

Now the dispute was likely eventually resolved, according to the Talmud (although not necessarily; one position holds that Beit Shammai followed Rabbi Yehoshua in rejecting the Halakhic authority of Heavenly voices, and so did not accept that the halakhah did not follow them), so I do not wish to suggest that the existence of diverse halakhic communities of practice is a value that should trump issues of social order and the like. But neither is it clear, at least to me, that uniformity of practice (let alone an artificial uniformity achievable only by defining non-conformers out of the community) is important for its own sake, rather than an optional means for achieving religious ends.

This insight may be useful in approaching some of the more divisive issues facing our communities. I suggest that often there is a felt need to create a uniform halakhah, even when that theoretical uniformity as to the practical law may ironically serve to divide rather than unify the Jewish people in practice. An ironic effect of the OU’s phenomenal success, for example, is that kashrut often is a more effective social barriers among Jews, and particularly among observant Jews, than between Jews and non-Jews (non-Jews do not resist simply buying off-the-shelf goods for social events, or even providing separate meals from super-glatt caterers at major events, as they have no personal standard of Jewish observance to thereby symbolically undermine).

The presumption that there can be only one halakhah at a time compels those who resist a current consensus to break off from the homogenizing community. Rather, we should all strive for halakhah to accord with truth, acknowledging that this may at times—not at all times, and not on all issues, and only in an atmosphere of genuine mutual trust—allow us to acknowledge multiple practices as legitimate, or even to live in community with those whose practices we see as badly mistaken. *Adapted from a 2010 shiur.

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Week Five Summary of SBM 2015

by Tova Reiter and Miriam Zami

In the fifth week of the program, we analyzed some critical modern and contemporary teshuvot and their approaches to our sugyot.

On Monday we read one of the first teshuvot about copyright law. In 1550, Maharam of Padua (Rabbi Meir ben Isaac Katzenellenbogen, 1482-1565) edits and publishes a new edition of Maimonides’ Mishneh Torah with his own commentary. Marc Antonio Giustiniani, a non-Jewish printer, publishes a cheaper version using Maharam’s edited text, which is certain to result in a loss for Maharam. Maharam writes to Rama (Rav Moshe Isserles, Poland, 1520 – 1572) asking him to halt distribution of the copycat edition.

Rama begins his seminal responsum by attempting to show that non-Jews are obligated in the same legal system as Jews are, and therefore he has legal jurisdiction over this Italian printer. He claims this case is an instance of gezeilah (robbery), which is one of the Seven Noahide Commandments, and Giustiniani can therefore be judged in Jewish courts.

Rama presents four arguments to rule against Giustiniani:

  1. Aviasaf (quoted in the Mordekhai) declares that even though we rule against Rav Huna’s position that one resident of a mavui (alleyway) can prevent a second resident from opening a competing mill, we follow Rav Huna in the case of a mavui satum (dead-end alleyway). Rama expands this case into a category of bari hezeikah (certain damage). So here, since Giustiniani is (deliberately) selling his edition for a cheaper price, it is certain that Maharam Padua will lose business and be unable to recoup his costs. This leads to an important question which Rama does not distinguish: Is this forbidden because he is intentionally ruining Maharam’s business, using predatory pricing (Giustinani has ample cash reserves), or just because it will definitely ruin his business? Rama also claims that we do not worry about creating eivah (animosity from non-Jews) in cases of commerce.
  2. Because Maharam of Padua is a great scholar, we invoke the Talmudic rule that the Jews are obligated to grant even a budding young scholar (tzurva merabannan) precedence in a market. (In this case, where the other seller is not Jewish, the most Rama can do is demand that Jews buy only from Maharam until his edition has sold out.)
  3. Even if Maharam was not a gadol b’Torah, the Jews should afford him initial market rights just because he’s Jewish–even if they will thereby take a loss.
  4. But Maharam is a talmid hakham, and we should always buy things from a talmid ḥakham to support him, and besides, Maharam’s edition is also qualitatively better.

It is important to note that Rama does not actually consider this a case of intellectual property theft, but rather a theft of the Maharam Padua’s initial investment of labor and printing. It seems that since they were operating in a goods-based economy, Rama views printing as any other commodity, not the way we currently conceive of books.

Rama institutes a Jewish communal boycott against Giustiniani, but the outcome is disastrous: The non-Jewish printer eventually convinces Papal authorities to burn all copies of the Talmud as well as a number of other commentaries, including many copies of the Mishneh Torah.[1]

In this case, it was false to suppose that the Jews could maintain an independent internal economy. Do we conclude that any such distinction may lead to eivah? Would knowledge of this outcome have affected the Rama’s decision? If so, do we need to reconceptualize Ḥoshen Mishpat in our modern age?

We spent the rest of the week studying a number of responsa of Rav Moshe Feinstein (1895 – 1986) relating to hasagat gevul:

  1. (1960) A slaughterhouse closes, and soon after, two of the four owners open a slaughterhouse in the same location and under the same name, but with a new slaughterer replacing two previous employees. Rav Moshe says this deliberate attempt to cut out two employees is a violation of the prohibitions of yerida l’umanut and hipukh b’ḥarara, which are issues of issur. In addition, Rav Moshe says that there is ta’anat po’alim mamash, meaning the employees have a legitimate claim to financial damages.
  2. (1978) Must a community patronize a Jewish funeral home if it is unduly expensive?Rav Moshe considers the Jewish funeral home as taking advantage of consumers in a vulnerable emotional position, and therefore engaged in gezel. It is therefore incumbent upon the beit din to find others, even non-Jews, to compete at lower prices, and there is no issue of hasagat gevul. It is noteworthy that the prices and services were both agreed upon prior to the purchase, and yet Rav Moshe still declares this a case of theft and imposes an obligation to break the monopoly.
  3. (1958) A rabbi argues that a new shul opened near his own shrinks his minyan and lowers the value of his building. It is clear that this conception of shul rabbi is as owner of the shul, renting out a space to congregants who effectively act as consumers (very different than our modern conception of shul rabbis). Rav Moshe declares that any situation in which a new competitor decreases the earnings of the existing business (in this case the rabbi) is considered yerida l’umanut ḥavero. Causing a decrease in standard of living, is as if you are pasak l’gamrei, cutting off another’s livelihood completely. This is the first time we have seen the maintaining of a standard of social status as the basis for preventing competition. Rav Moshe dismisses the congregants’ personal complaints against the rabbi, and accuses the breakaway minyan as further transgressing lifnei iver, for leading others to harm the rabbi.
  4. (1960) A tutor writes to Rav Moshe that one of his clients replaced him without cause. Rav Moshe claims that if someone is in the category of ani hamehapekh, then whether or not they know about the intent of the first person to purchase, they are obligated to return the object. In this case, the replacement would not be released from any obligations to the original tutor based on his ignorance of the previous transaction. However, Rav Moshe does not think this is an actual case of ani hamehapekh, because he limits that prohibition to cases where the initial party has no other employment opportunities. [He deals with the Talmudic exceptions for Torah teachers by arguing those only allow a new teacher to set up near an existing teacher, but not to directly take his clients.] Interestingly, in this case Rav Moshe encourages the parties to work it out among themselves.
  5. (1979) Rav Moshe prohibits any new shul establishment near a particular standing shul for ten years, to protect the existing shul’s investment in expanding its facility. We have not seen any precedent for such a psak, and for reasons not entirely certain, Rav Moshe seems to be acting on the belief that he has full and effective authority over the market when it comes to shuls. This is the only time we read where Rav Moshe issued an injunction in advance. In essence he grants the firs shul an exclusive ten year license.
  6. (1956) May a man pursue a woman already nishtadekh to someone else? Rav Moshe uses this opportunity to create a unified theory of hasagat gevul. According to Rabbeinu Tam, the prohibition of ani hamehapekh applies in cases of mekher, commerce, but not to hefker/metzia, objects obtained for free. Radakh and Ramban disagree as to whether buying a discounted item is considered mekher or metzia. 

Rav Moshe offers two overall theories of ani mehapekh, and argues that they underlie the sides of this maḥloket, respectively.

Theory I: The prohibition of ani hamehapekh rests on a right not to waste effort. Rav Moshe reads “hefker” as an object with no owner, which everyone therefore has equal rights to acquire. Although a person who is mehapekh has the right to not waste their effort, their effort does not necessarily give them the power to acquire the object, thereby eliminating everyone else’s prior rights to it. This depends on a relative comparison of the value of the opportunity and the efforts expended: if a similar opportunity is easily found elsewhere, then the loss of effort outweighs others’ loss of opportunity; if a similar opportunity is not easily found elsewhere, the loss of opportunity outweighs the loss of effort. On this logic a discount is identical to a “finding.”

Theory II: The prohibition of ani hamehapekh rests on treating effort as tantamount to acquisition. In a case of mekher, the seller is ready to sell the object, and therefore the first person’s efforts have basically acquired the object, so interloping is prohibited. Whereas in a case of a gift, the mehapekh does not change the status of the object just by expending effort to acquire it. The giver may decide at any point not to release the object with no ramifications. And in the case of hefker, the mehapekh also does not change the nature of the object just by expending effort to acquire it. On this logic a discounted object remains a mekher.

[1] For a full English discussion of the teshuvah of the Rama with historical context and consequences, see Neil W. Netanel, “Maharam of Padua v. Giustiniani: The Sixteenth-Century Origins of the Jewish Law of Copyright.” Houston Law Review, Vol. 44, 2007; From Maimonides to Microsoft: Jewish Copyright Law Since the Birth of Print, Neil W. Netanel and David Nimmer, eds., Oxford University Press, 2009; UCLA School of Law Research Paper No. 07-34. Available at SSRN: http://ssrn.com/abstract=1066285.

 

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