Thursday, September 17, 2009

Disturbing Traffic

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The Mishna states: If a tree is leaning over the public domain, it must be cut so that a camel and its rider may pass by.

HaGaon Rav Yosef Shalom Elyashiv rules in reference to our Mishna demanding a tree’s owner to prune its branches that disturb public traffic that he is only required to cut branches up to the height of a camel with its rider. The current obligatory limit, however, is the minimal height demanded by government authorities for building bridges over roads.

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Wednesday, September 16, 2009

Cutting Down Fruit Trees

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Rava bar Rav Chanan refused to cut down his fig trees because Rav Chanina’s son died because he cut down a fig tree.

There is a prohibition from the Torah to cut down fruit bearing trees. It is not clear, however, that the prohibition should apply in this case. Tosfos asks a question from a Gemora in Bava Kamma (92a). The Gemora says that one is allowed to cut down a fig tree in order to save vines. Grapes are considered more valuable than figs and therefore it is not considered destructive to cut it down. Why then did Rava bar Rav Chanan refuse to cut down his fig tree?

Tosfos answers that one is only allowed to cut the fig tree if it is doing serious damage to the vines. In our case, the damage was not so severe so it was not permitted.

The Rosh in Bava Kamma permits the cutting of a fruit tree if one needs the space in which the tree is situated.

Based on this, the Taz (Yoreh Deah, 116) allowed someone to cut a fruit tree in order to build a house.

The Ya’avetz, however, requires that one have a gentile cut the tree based on a different understanding of our Gemora. The Ya’avetz is bothered by the question of Tosfos. If it is permitted to cut the tree, why was Rava bar Rav Chanan afraid of a curse? The Ya’avetz comes to the conclusion that even though it is permitted according to halachah, there is still a curse. Therefore one should never cut the tree down by himself, but rather have a gentile do it. Many people conduct themselves according to this opinion even though almost all the Rishonim don’t learn this way.

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Tuesday, September 15, 2009

Retaining its Beauty

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The Mishna says that if the city is first, the tree should be cut down and he will not be reimbursed.

The Gemora asks: Why does the owner of the pit have to reimburse the owner of a tree for the cutting down of his tree, while in our Mishna the owner of the tree is not reimbursed?

Rav Kahana says: This is because a pot belonging to partners is neither hot nor cold. [Rashi explains that it is difficult to collect money from people in the city for the tree, as everyone will say that money should first be collected from others. In the interim, if the tree is allowed to stand, it will affect the beauty of Eretz Yisroel. We therefore rule that the tree must be cut down immediately without payment.]

The Gemora asks: What is the question? Perhaps there is simply a difference between damaging the public and damaging an individual!?

Rather, the Gemora answers: Rav Kahana’s statement was said regarding the second part of the Mishna. The Mishna states: If the tree was first, he must cut it down, but he is reimbursed. One would think he could claim, “First give me the money and then I will cut it down!” [The Mishna implies that he first must cut it down, and only then is he reimbursed.] Rav Kahana says: This is because a pot belonging to partners is neither hot nor cold.

Reb Moshe Feinstein asks: According to the Rishonim who hold that this halachah only applies in Eretz Yisroel, what is the Gemora asking that he should tell them, “First give me the money and then I will cut it down”? It is also incumbent upon him to beautify Eretz Yisroel! Just as they are obligated to give him money for this, he should be obligated to lose money on this account!? Why should he be entitled to cut it down only with the stipulation that he should be reimbursed for it?

Now if the halachah would apply in all lands because it is painful for people to see the ruining of their town, we could understand that he would have a right to claim that the town’s look does not bother him at all. However, the beauty of Eretz Yisroel is not dependent on his personal preference – if so, why should he be allowed to make such a stipulation?

He answers that although they all are obligated to preserve Eretz Yisroel’s beauty, he is not compelled to lose money for this.

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Monday, September 14, 2009

Closer and Majority

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Rabbi Chanina maintains that when the principles of rov, the majority, and karov, close in proximity, conflict with each other, then we follow the principle of majority. And although both principles are of scriptural origin, the principle of majority is superior.

Reb Shmuel Rozovsky is uncertain as to why we would follow that which is “closer.” Is it because that this is a method which clarifies the doubt, for it is more probable that it came from the “closer”? Or perhaps, the probability of coming from the “closer” is just as likely as if it was coming from the “further,” except that there is a halachah that we follow that which is “closer.”

This can be proven from that which Rabbi Chanina said that when there is a conflict between the “majority” and that which is “closer,” we follow the “closer.” If “majority” and “closer” are both logics that clarify to us that which was uncertain, Rabbi Chanina’s halachah would be understandable, for he would be informing us that the clarifier from the fact that it is closer is superior then the clarifier emerging from the majority.

However, the Tosfos HaRosh in Bava Metzia (66b) writes that when we follow a majority that is before us (such as a piece of meat, where we are uncertain if it came from one of the nine stores selling kosher meat, or the one store selling non-kosher meat), that is not because the majority verifies for us that the meat in question came from the kosher shop; rather ,it is the Torah’s law that we follow the majority. Accordingly, if we would say that the logic of following the “closer” is on account of clarification, it would certainly be stronger than a mere “majority.” This proves that following the “closer” is also a Torah law and not based on logic.

If so, the question begs to be asked: How does Rabbi Chanina know that we follow the “closer” and not the “majority”? If they are both halachos without any logic, why is one superior that the other?

He answers that even though they are both halachos and not verifiers, they are distinct from each other. When we follow the majority, the majority resolves the uncertainty. Although the doubt rests before us, the majority is a decider. However, when we follow the ”closer,” it doesn’t resolve the uncertainty at all; it merely tells us that we should not search any longer for where this doubtful item comes from - since we can attribute it to that which is closer. However, when that which is closer conflicts with a majority, it is impossible to assert that the object did not come from that which is further (for the majority tells us that it did); it therefore reverts back to an ordinary case of uncertainty, where we would rule according to the majority.

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Heavenly Academy

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Rabbi Yirmiyah inquired: If one foot is within fifty amos and the other beyond, how do we rule?

The Gemora notes: It was for this that they ejected Rabbi Yirmiyah out of the Beis Medrash.

Rabbi Chaim Vital writes in Sha’ar Hagilgulim that his Rebbe, the Arizal, told him about Rabbi Yirmiyah, who was constantly asking questions. Since his intention was to increase the studying of Torah and to glorify it, and yet, they embarrassed him and sent him out of the study hall, his reward is of a great magnitude. All inquiries that are posed in the Heavenly Academy are asked by Rabbi Yirmiyah. And he was chosen, said the Arizal, to be the one to stand guard at the entrance of the Heavenly Academy.

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