Tuesday, August 18, 2009


by: Reb Avi Lebowitz

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The Gemora has a principal that one does not receive lashes for a transgression that can be fixed up through the performance of a positive commandment.

Tosfos understands the Mishna to be saying that one would receive lashes for taking a millstone as a security, since the millstone contains two components, which are considered separate and independent parts regarding the violation.

Tosfos asks: Why should one receive lashes at all since the rationale behind the prohibition is that these are ochel nefesh type items (meaning they are needed for his livelihood), so it can potentially be fixed by returning them, so that there should not be lashes associated with this violation at all?

The proof that Tosfos cites for this being a “la’av hanitek l’aseh” (a transgression that can be fixed up through the performance of a positive commandment) and that one doesn’t receive lashes for such a transgression, is the story quoted on 116a where a person took a slaughtering knife as collateral and Abaye commanded him to return it. Tosfos at first understands that the only rationale for returning the item would be that it is a“la’av hanitek l’aseh”. Ultimately, Tosfos concludes that it is not a “la’av hanitek l’aseh,” and the only reason that Abaye demanded that it be returned is that the lender didn’t realize when he took it that it was forbidden, so that he never acquired it as a security, and therefore it had to be returned.

Regarding taking ochel nefesh type items as a security, there is an argument amongst the Rishonim. Tosfos 113a (d.h. v’es), holds that any item that is needed for livelihood may not be taken at all as collateral. However, the Maharsha quotes many Rishonim who disagree with Tosfos and hold that it may be taken as collateral, but must be returned when the borrower needs them to use for his livelihood. See also Hagahos HaGra on Tosfos who quotes that the Ramban and Rashba hold that it may be taken, but must be returned when needed, whereas the Rambam agrees with Tosfos that it may not be taken at all.

Now, the entire assumption of Tosfos that the reason Abaye must have insisted on returning the ochel nefesh collateral was because it is a “la’av hanitek l’aseh”, is following his own line of reasoning. Had Tosfos held like the Ramban and Rashba, there would be no proof at all from the story of Abaye because Abaye was merely telling the person that the standard rules of this type of security is that it must be returned when the borrower needs it.

Tosfos also assumes that if we would say “Whenever the Torah says not to do something, and one goes ahead and does it anyway, it is not effective,” then it would make sense that Abaye would demand returning the security, since he wasn’t allowed to take it, the taking was ineffective.

There is a big discussion in the Achronim (Chavos Da’as and R’ Akiva Eiger in Hilchos Shechita) whether “Whenever the Torah says not to do something, and one goes ahead and does it anyway, it is not effective,” applies when the prohibition will anyway not be fixed. Meaning that “if one goes ahead and does it anyway, it is not effective” may only apply when we say that by not taking effect, the prohibition will not have been violated. Based on that principal, it is a big novelty for Tosfos to assume that “if one goes ahead and does it anyway, it is not effective” would apply here. Even if the kinyan doesn’t take effect, there is certainly some transgression violated by taking an item of the borrower that should not be taken - if not for the prohibition of “do not take,” there would be a prohibition against stealing. Yet, Tosfos assumes that since “if one goes ahead and does it anyway, it is not effective” would help avoid “do not take as a security,” even though it will cause a prohibition of stealing, we can still apply this principal to prevent the lender form acquiring the collateral.

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Sunday, August 16, 2009

Eliyahu's Locker Room

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The Gemora (Sukkah 5a) states that the presence of Hashem (as manifested in the higher worlds) never descended to within ten tefachim of the physical world. Similarly, Moshe and Eliyahu could not ascend to within ten tefachim of the upper worlds.

Discussing that Gemora, the Chasam Sofer explains that this was only as long as Eliyahu was encumbered by his physical body. However, once his soul was freed from its body, he assumed the status of an angel, and was not bound by any of these limitations.

The Chasam Sofer proceeds to say that when Mashiach comes, Eliyahu will once again don his body and live as a human amongst the other great people of that great generation. He will be allowed to rule on any halachic issues (a privilege reserved for mankind) since at that time he will have reassumed the existence of a human being. Meanwhile, however, he has the status of an angel, and therefore he is not bound by any of the limitations imposed upon men. This applies for halachah as well; Eliyahu may traverse the globe on Shabbos to go to a bris milah, even though this involves traveling beyond the permitted distance, since as an angel he is not bound by halachah.

Our Gemora relates an incident where Rabbah bar Avuha encountered Eliyahu in a graveyard. Rabbah asked him how he was permitted to be there despite his being a Kohen. The Chasam Sofer explains that Eliyahu must have been in his body at the time, because otherwise, he would have the status of an angel, and Rabbah would have known that as such, these halachos do not apply to him.

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Adam - Unity

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Rabbi Shimon ben Yochai said: The graves of idolaters do not transmit tumah through the roof (if the tumah source and a person or object is under the same roof). He cites a Scriptural source to prove this point. It is written [Yechezkel 34:31]: Now you my sheep, the sheep of my pasture; you are adam. You, Israel, are referred to as “Adam,” man, but an idolater is not regarded as “Adam.” (The word “Adam” is the term used in the Torah regarding the laws of tumah by way of a roof; thus we see that the grave of an idolater does not transmit this tumah.)

The Ol’los Efraim says that there are four names for man; Adam, Gever, Enosh and Ish. Each of them can be written in a singlular form as well as in a plural form. However, the term “Adam” can only be written in a singular form. He explains this with our Gemora. Only a Jew is referred to as Adam, not an idolater. Klal Yisroel has the quality of achdus, uniting as one; therefore only we can be called Adam.

Using this principle, we can answer a famous question. It is written [Koheles 12:13]: The end of the matter, all having been heard: fear God, and keep His commandments; for this is the whole man. The Shalah comments that the verse fear God is referring to the negative prohibitions; the verse and keep His commandments is referring to the positive commandments; and the verse for this is the whole man is the essence of man, the two hundred and forty eight limbs and the three hundred and sixty five veins, which are corresponding to the two hundred and forty eight positive commandments and the three hundred and sixty five negative prohibitions.

There are those that ask: If so, it is impossible for any single individual to be complete; it is impossible to fulfill all six hundred and thirteen mitzvos. Some mitzvos are only applicable to a Kohen; some are unique to a Levi; others are only to a Yisroel; men have mitzvos that are only relevant to them, and women have their special mitzvos. How can a person be considered complete?

Perhaps the answer is because Klal Yisroel is Adam. We are all united. One person’s performance of a mitzvah effects everyone else. If everyone does their particular mitzvah, Klal Yisroel can be regarded as being complete.

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The Beilis Blood Libel

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The following story is printed in the Sefer Margaliyos HaShas amongst others and the text of the entire story can be found here: shemayisrael.

The Beilis Affair shook the ground under those Jews who had thought that the modern world was a more rational one, a world in which outrageous accusations might be levied but would certainly not gain credence. When Mendel Beilis was brought to trial for a blood libel accusation, it seemed that the progress of a century would be completely wiped away in an instant.

Jews around the world were stirred to action. There was also an outpouring of sympathy from non Jews who recognized the injustice and absurdity of the accusations. A progressive newspaper in Germany reported that libels that echo with the style and content of the darkest medieval times are being hurled against the Jewish minority in Russia. Diplomats, statesmen and other men of prominence urged the Russian government to retreat from this bizarre enterprise. But against this flood of outrage, the anti-Semites of the world only strengthened and increased their own accusations.

The Jewish world was in turmoil. In congregations around the globe, special daily prayers were instituted for the deliverance of Beilis and all the Jewish people. Community leaders, rabbis, chassidic rebbes and influential activists became involved. The Chazon Ish was an active participant in the fight, as were Rabbi Meir Shapiro, the Lubliner Rav, the Lubavitcher Rebbe and the Chortkover Rebbe. The main thrust of their efforts was ambitious. They sought not only to clear Beilis of the unfounded charges but also to uproot the very idea of the blood libel.

The lawyer that headed the defense team was the legendary Oscar Gruzenberg. He knew that the prosecutions attack was going to be directed against the Talmud and other works of Jewish scholarship and that the expertise in devising a defense would have to be provided by the rabbis. Rabbi Mazeh, Chief Rabbi of Moscow, was chosen to head the rabbinic advisory team for the defense.

On October 8, 1913, right after Yom Kippur, the trial opened. The long-awaited spectacle was now under way. Jew and non-Jew in Russia and around the world awaited the outcome with breathless anticipation.

As the trial began, the indictment accused Menachem Mendel the son of Tuviah Beilis, 39, of having murdered together with other people, not discovered, under duress of mysterious religious obligations and rituals, one Andrei Yustchinsky.

The twelve jurors were carefully chosen; their identities and ideologies had been thoroughly prepared prior to the charade of the trial. The first witnesses testified to such blatant lies that the defense lawyer did not even feel compelled to discredit their testimonies. These preliminary stages were clearly a farce, and the audience, near and far, waited for the real trial to begin. At last, the parade of experts began. And the trial became an examination of the Talmud's view on various issues.

What does the Talmud say about the place from which the soul exits the body? Is it correct that the Talmud states that stealing from a gentile is permissible?

The constant refrain was about the Talmud. There, in the depths of the main courthouse of Kiev, all one could hear was Talmud. The prosecutor was prepared with an avalanche of quotes from the Halachic (legal) and the Aggadic (homiletic) portions of the Talmud. Anti-Semites around the world had done their homework and had rallied to the cause of condemning the Jewish people and the Jewish religion in a court of law.

The crucial question was posed: How dare the Jewish sages claim that [the Jewish people] are called adam, man, while the idol worshippers are not called adam?

The illustrious Rabbi Meir Shapiro was then the Rabbi of Galina. (Later, he would establish and serve as the head of the famous yeshivah of Lublin, and he would also institute the Daf Yomi.) When Rabbi Shapiro heard about attacks against the Talmud, he understood that the Talmud was being accused of inciting Jew against non-Jew. Rabbi Shapiro sent off a very clear letter to Rabbi Mazeh dealing with this accusation. He told him to explain to the court that a very important insight into the nature of the Jewish people is revealed in this Talmudic quote.

The Torah states, he wrote, that kol Yisrael areivim zeh lazeh, all Jews are responsible for each other. (Shevuos 39) According to this principle, it stands to reason that the fate of Mendel Beilis, for example, which is in essence the fate of one single Jew, nevertheless touches the entire Jewish people. The Jewish people tremble for his welfare and would do everything in their power to remove the prisoner's collar from him. What would have been the reaction of the gentile world if one specific gentile had been accused of a similar crime and was standing trial in a faraway country? Clearly, no more than the people of his own town would show any interest in the libel. Perhaps, at most, people in other parts of his own country would criticize the proceedings. But people in other countries? They certainly wouldn't take a personal interest in him.

This, therefore, is the difference between the Jewish people and all other peoples. The Jews are considered adam, the singular form of the word man, an indication of the extreme solidarity of the Jewish people. For us, when one Mendel Beilis is put on trial, the entire Jewish world stands at his side like one man. Not so the other peoples of the world. They may very well be considered anashim, the plural form of the word man, but they cannot be considered adam, a nation that stands together as a single man.

There is no way of knowing which particular effort of which particular rabbis may have had some impact on the trial. All in all, however, the concerted efforts of the Jews bore out the interpretation of Rabbi Meir Shapiro that you [the Jewish people] are called adam, for the Jews did set aside their internal differences and stood together as one man until the verdict of not guilty was returned.

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A Pawned Sefer Torah Donated to a Synagogue

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Our Mishna treats the topic of a mashkon (“pledge” or “pawn”) taken from a debtor who fails to pay and rules that the lender must return it when needed. A pillow, for instance, taken as a mashkon must be returned at night. However, a pillow taken as a mashkon at the time of the loan does not have to be returned each night as the borrower gave it willingly (114b).

Our sugya cites other halachos applying to a mashkon taken after payment is due as opposed to that given at the time of a loan. One halachah pertinent to all mashkonos is that the lender must not sell a mashkon by himself and take the proceeds in payment for the loan but rather must bring it to a beis din for valuation. If a lender sold a mashkon without such valuation, the sale is invalid even if the price was correct (Teshuvos HaRosh; Shulchan ‘Aruch, C.M. 73:15).

A lender who thought he was clever ignored this halachah and almost suffered a great loss as a result of his actions. When his debt was not paid he took an antique Sefer Torah as a mashkon. The debtor was later convicted of a crime and sentenced to prison for several years. The lender thought he could what he pleased with the Sefer and donated it with much song and ceremony to a synagogue. Eight years later the debtor was freed and came to the lender to pay what he owed and redeem the Sefer Torah. Discovering what had occurred, he refused to accept the situation and appealed to Rav Yehudah Asad, who ruled in the debtor’s favor (Responsa Yehudah Ya’aleh, Y.D. 283). First of all, the donation was invalid as the lender was forbidden to change the proprietorship of the mashkon without valuation by a beis din and the synagogue administration was ordered to return the Sefer Torah to the borrower. Moreover, according to many poskim, the borrower was exempt from paying the debt as soon as the lender gave away the mashkon. His action showed he despaired of ever collecting the debt and even the borrower’s wish to pay does not renew it! Still, Rav Asad adopted the opinion of the Chacham Tzvi (Responsa, 144), that yeiush (despair) does not cancel a loan, and ordered the debtor to pay. (See Shulchan ‘Aruch 163:3 and Ketzos HaChoshen, ibid, S.K1.)

Meoros Hadaf HaYomi

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