Sunday, September 28, 2008

atem nitzavim hayom kulchem - the totality of each person

The Radomsker asks why the pasuk seems to repetitively tell us "atem nitzavim hayom kulchem", you are all standing here before Hashem, and then after enumerating all the varied socio-econimic strata of people present concludes the section by again saying "kol ish yisrael", all people were present. What I think the essence of the Radomsker's answer means (stripping away the kabbalstic ideas) is that the opening phrase referring to "kulchem" does not really mean all the people in the sense of every member of the group -- that is what the last phrase, "kol ish yisrael" refers to. The opening phrase of "kulchem" means each individual in his/her totality of being. What does that mean? We all wear varied hats in life. We at various times might function as a parent, a sibling, a son/daughter, an employee, an employer, a friend, a talmid chacham, a ba'al chessed, etc. When we are at work wearing the hat of employee or employer and doing business, we might put out of our mind the persona of ben Torah that we wore for davening in the morning. Or when we are wearing the hat of a ben Torah we might forget that we also have responsibilities to a wife and children and need to care for them and give them time that could be spent learning. Sof kol sof it is very difficult to juggle all these hats and never run into a problem, or to feel completely at ease in all of them all of the time. So you might think on Rosh haShana (the day which according to the Midrashic reading of the pasuk is the day which we stand before Hashem) when we step into shul we might cling to that hat which fits best -- put the best foot forward. The pasuk tells is that Hashem will have none of that. When we stand before G-d, it is "kulchem", all the differnet varied personas we adopt are standing before Him, as Hashem judges our actions in every role we play, based on every facet of our personality.

Hopefully we will each be judged for a good and sweet year - kesiva v'chasima tova!

tekiya-teru'ah-tekiya: three notes or one unit?

The Mishna (Sukkah 53) tells is that no fewer that 21 chatzotzros blasts were blown daily in the Mikdash as part of the process of offering nesachim, but the gemara cites R' Yehudah's opinion that the minimum number of blasts was 7. Explains the gemara that there is no argument. The blowing had to be done in units of three: tekiya, teru'ah, tekiya. The Tanna of the Mishna countes 21 blasts in total; R' Yehudah counts 7 units of three.

The Rogatchover explains the machlokes as follows -- for any series of items that must go together, e.g. 4 minim on Sukkos, 4 kosos on Pesach, tekiya-teru'ah-tekiya, one can make the following chakira: are these seperate independent units which must go together, or does that fact that they must always go together prove that they are not independent units but are parts of some larger whole? Is there a single note called tekiya-teru'ah-tekiya, or are these three seperate notes which must always be played together?

The gemara explains that R' Yehudah learned from the pasuk "u'tekatem teru'a" that the terms tekiya and teru'ah are interchangable; they are one and the same unit and go together. The Tanna of the Mishna holds that the blasts are seperate units based on the pasuk which describes the blowing done to gather the camp in the desert, "tiski'u v'lo tari'u" -- if tikiya and teru'ah together form one unit, says the gemara, how could the Torah tell Moshe to do half a mitzvah?

The Aruch laNer is bothered by the gemara's logic and develops his question through an analogy to the mitzvah of zerikas hadam by korbanos. Some korbanos require 4 sprinklings of blood; some require only one. If a korban requires only one sprinkling of blood, we wouldn't call that 1/4 of the mitzvah of zerikas hadam -- viz a viz that korban, 1 sprinkling of blood is 100% of the mitzvah, not 25%! So too with respect to blowing chatzotzros. If the Torah requires a single tekiya in some circumstances, in those circumstances that single tekiya is 100% of the mitzvah, not 50% of the mitzvah that appears in other circumstances. What does the gemara mean?

Based on the Rogatchover, we can perhaps distinguish between the case of zeikas hadam and chatzotzros. With respect to korbanos, how many sprinkles should be are done is a function of the chovas hagavra, i.e. what action the person must take to fulfill the mitzvah. R' Yehudah and the Tanna are not arguing about what the act of blowing shofar entails or how many sounds must be blown. Their argument is regarding the cheftza shel mitzvah of a tekiya -- what is a shofar note in its simplest form: a three note tekiya-teru'ah-tekiya, or 1/3 of that series. What a person must do can change in different contexts depending on the requirements of the mitzvah, but the definition of an object is something that remains constant -- either a tekiya (or teru'ah) alone is a note, or it is not. But something can't both be a note and not be a note at the same time.

If we consider notes as one unit, it makes sense that they should be blown together, without even a breath in between. Some Rishonim suggest this nafka minah between R' Yehudah and the Tanna. This brings us to the practical question of the shevarim-teru'ah which we blow - is it one note or two notes that go hand in hand; one breath or not? Fortunately there are enough kolos to cover all the bases and not have a safeik.

Kesiva v'chasmima tova to all!

u'bacharta bachaim

Commenting on “u’bacahrta ba’chaim”, the Netzi”v cites a Sifri in Parshas Re’eh which illustrates the lesson of the pasuk with a comparison to a fork in the road where one path is covered with thorns and brambles and one path looks smooth and passable. Although the clear road appears to be the better route, in actuality the path which appears impassable will become a smooth highway further along and the smooth path will become clogged with obstacles. Taking the easy road is sometimes a shortsighted error. Similarly, when one comes to a fork in the road of life, choosing the path of torah and morality may appear to make the going more difficult, but will ultimately prove more rewarding.

The Netzi”v is not satisfied with this simple lesson alone as the moral of the Sifri's analogy. In the analogy, both paths ultimately lead to the same destination. In the choices faced in life, the choices of the saint and choices of the sinner carry them to quite different destinations. How does the analogy fit?

The message of the Sifri is that our assumption about the destination of the sinner is wrong. No soul is lost forever. A person may have to undergo suffering in this world and the next to purge the soul of its sins, but ultimately every Jewish sould can be and will be rehabilitated and restored to its splendor and rightful place close to Hashem. Precisely because no soul can ever be lost are we exhorted "u'bacharta bachaim". Why take a circituitous and long route to one's destination that requires suffering and punishment when one can choose the correct path and arrive at one's destination with ease?

Wednesday, September 24, 2008

which side of his mouth does a lefty blow shofar from?

A little halacha from the Mishna Berurah l’kavod the C”C’s yahrtzeit:

The Rama (585:3) writes that it is best (“tov”) to blow shofar from the right side of the mouth.

The Mishna Berurah quotes two explanations from the Magen Avraham for the minhag: 1) to counter the influence of the satan who stands to the right, as the pasuk says, “v’hasatan omeid al y’mino l’sitno”; 2) the left is already protected by the tefillin worn on the left hand (quoted in the Sha’ar haTziyun). The Biur Halacha adds another explanation which the C”C heard in the name of R’ Meir Simcha (I am far from a baki in M”B, but for what it's worth, I don’t recall other quotations from RMS in the MB): the gemara derives tekiya from the blowing of chatzotzros in battle; in the description of the battle fought by Gidon in Nach we learn that the chatzotzros were held in the soldiers’ right hand and torches in the left.

Since my son is a lefty I am somewhat more attuned to halachos that emphasize right-handedness and have come to expect debate as to whether things are reversed for leftys. This is no exception. Whether a lefty should blow out of the left side of his mouth should at first glance depend on which reason above is paramount: according to reason #1 and the reason given by RMS, both a righty and a lefty should blow out of the right side of the mouth. However, according to reason #2, a lefty who wears tefillin on his right arm should blow shofar out of the left side of his mouth because the “protections” would be reversed.

The M”B in the Sha’ar haTziyun rejects this nafka minah (and therefore he tucks reason #2 in the Sha’ar haTziyun where most people won’t see it and get confused). When we speak of the protective power of tefillin, we are not speaking viz a viz the particular ba’al toke’a, but viz a viz ba’alei tekiya in general. Since the majority of people are righthanded and wear tefillin on their left arm, the shofar is blown from the right by all.

(R' Menashe haKatan in Mishaneh Halachos Mh”T O.C. #480 was asked halacha l’ma’aseh how a lefty ba’al toke’a should hold the shofar. He replied by quoting this M.B. B’dieved, one is yotzei either way.)

Monday, September 22, 2008

kedusha outside the ivory tower of the beis medrash

Some belated Torah on the parsha:

Among the brachos promised if we do the right thing is, “Y’kimcha Hashem lo l’am kadosh ka’asher nishba lach ki tishmor es mitzvos Hashem Elokecha v’halachta b’derachav” (28:9) – Hashem will sustain us as a holy people on the condition that we observe the mitzvos and "walk in His ways". The Netzi”v (and many others) asks: the list of brachos is prefaced in the very first pasuk of the chapter with the condition that they would be fulfilled only if we observe Hashem’s mitzvos, "V'haya im shamo'a..."; why is that condition repeated here again in pasuk 9 in the context of the bracha of "y'kimcha lo l'am kadosh"?

The key to understanding the pasuk lies in the words, “v’halachta b’derachav”, which Chazal interpret to mean that a person’s behavior should conform to the model of gemilus chessed demonstrated by Hashem, e.g. Hashem visited Avraham to heal the sick, Hashem helped bury the dead, etc., and therefore we should visit the sick, help bury the dead, and do other acts of chessed. A person may rightfully object that the social interaction that these mitzvos demands carries with it a price. A person who sits secluded in the Bais Medrash in private contemplation, locked in the ivory-tower of Torah, can rise to great heights of holiness and dveikus. However, once a person steps foot into the public domain, inevitably there is a hashpa’ah that the outside world has on a person’s dveikus and intensity.

Our pasuk answers that ta'anah. “Ki tishmor…v’halachta b’derachav” is not a condition – it’s a promise; not “if you observe… you will be holy”, but “when you observe… you will be holy”. Even though the observance of “v’halachta b’derachav” entails sacrificing the ivory tower of Torah, if done properly Hashem guarantees that “y’kimcha Hashem l’am kadosh”.

Sunday, September 21, 2008

tshuvah and kochi v'otzem yadi

I rescued a nearly new copy of Chayei Mohara"N that I saw deposited in sheimos (I know what you Litvaks are thinking... ) and in the back there are a few pages called Sheva Amudei Emunach composed by R' Yitzchok Breiter which taken by themselves would have been worthy of rescue. One yesod which he writes regarding the idea of tshuvah is startling. When we think of tshuvah we imagine a person coming to the realization that he/she has not been acting as the Torah requires , deciding to improve his/her behavior, and in turn, assuming this change for the better will draw him/her closer to Hashem. Says R’ Yitzchok Breiter, such thoughts of tshuvah contain mixed within them the essential germ of all kefira, which is thinking “kochi v’otzem yadi”. Lack of success in avodas Hashem is not only because a person is not trying hard enough, and conversely success in avodah is not just about changing behavior to conform to a higher standard. These assumptions in effect say we are the ba’alim of Hashem’s relationship with us, whether for good or bad - kochi v'otzem yadi controls the entire dynamic! Tshuvah means accepting that we are not the ba’alim. Yeridos and obstacles are part of Hashem’s plan, and the reason we might not be successful is because (for whatever) reason Hashem has chosen not to give us success at this moment. In addition to changing our behavior, tshuvah demands heartfelt tefilah asking that Hashem, the true ba’alim, bring about a change in His relationship with us and allow us to draw closer.

Bavli vs. Yerushalmi on chatzi shiur

The gemara asks why the Mishna at the end of Yoma refers to eating on Yom Kippur as being "assur" and not "chayav", as one who eats on Y"K is chayav kareis. The gemara explains that the Mishna is dealing with a case where one ate a chatzi shiur which, according to Reish Lakish, is only an issur derabbanan but not a chiyuv kareis.

What is amazing is that the Yerushalmi at the beginning of the 6th perek of Terumos presents Reish Lakish as holding exactly the opposite view. According to the Yerushalmi, although Reish Lakish in other areas holds that chatzi shiur is only an issur derabbanan, davka by Yom Kippur he agrees with R' Yochanan that chatzi shiur is an issur d'oraysa.

The reasoning of the Yerushalmi actually seems to be as follows: When the Torah uses the term "achila" it implies a minimum shiur of a k'zayis. However, the Torah never uses the terms "achila" with respect to the prohibition of eating on Y"K -- it uses the term "inuy". Even eating the smallest amount of food diminishes the feeling of inuy.

What are we to make of these two versions of Reish Lakish completely at odds with with each other? The Tziyun Yerushalayim on the Yerushalmi quotes R' Ya'akov Emden as offering a creative way to reconcile the two. According to the Mishna, the chiyuv kareis for eating on Yom Kippur applies only if the amount of a k'koseves hagasah, a large date (larger than a k'zayis), is eaten. R' Y"E suggests that perhaps there are actually two levels of chatzi shiur. If less than a k'zayis was eaten on Y"K, both the Bavli and Yerushalmi agree that Reish Lakish would hold that the issur is only derabbanan -- since this amount does not constitute what the Torah usually calls achila, there is no Biblical chiyuv. The Yerushalmi Terumos is adding an additional chiddush that applies only where one ate more than a k'zayis on Yom Kippur but less than a k'koseves hagasah, i.e. less than the amount that would generate a chiyuv kareis. Although technically this achila can also be called a chatzi shiur with respect to Yom Kippur, since this achila surpasses the normal threshold for what constitutes achila in other areas, even Reish Lakish would hold it is Biblically prohibited on Yom Kippur as well.

Thursday, September 18, 2008

bowing in the mikdash

Among the miracles of the Bais HaMikdash which the gemara describes (Yoma 21) is that when everyone came to Yerushalayim for aliya la'regel there was standing room only in the Mikdash, but miraculously there was sufficient space for everyone to bow. Why was this bowing necessary and why was extra space needed? Rashi explains that the miracle was needed so there could be 4 amos of space between each individual when reciting viduy (done while leaning over) so no one would overhear his/her neighbor's confession. The Maharasha offers a different reason for the extra space. Bowing in Mikdash was done as a response to hearing the Shem Hashem pronounced by the Kohein Gadol during the avodah of Yom haKippurim, just as we bow on Yom Kippur when we read the re-enactment of that avodah during Mussaf. This type of bowing entailed prostrating oneself on the floor, which takes up much more space than standing erect. The focus of Rash as well as the Maharasha seems to be on acts which we associate with Yom Kippur depsite the fact that the gemara refers to the miracle as occuring on aliya la'regel.

The Brisker Rav suggests that bowing was not a function of viduy or of hearing the Shem Hashem, but was a separate obligation incumbent upon anyone who visits the azarah. The GR"A comments on the pasuk in this week's parsha, "v'histachavisa lifnei Hashem Elokecha", that bowing is not as part of the halachic procedure of delivering the bikurim, but part of the ceremony of entering or leaving the Mikdash. Similarly, the Brisker Rav explains that this is why we say in our davening on the shalosh regalim we ask Hashem for the opportunity, "v'na'aleh v'nera'eh v'nishtachaveh lefanecha", to go up and appear in the Mikdash and bow there.

Wednesday, September 17, 2008

credit crunch

People usually call on hashgacha to explain the seemingly miraculous good that sometimes happens, e.g. in your typical chassidishe ma'aseh a person in need of a dowry for a daughter or some other tzorech will do some good deed and then happen upon a business deal or a lost wallet that contains precisely the sum of money needed. What are the odds of coming upon a lost wallet containing exactly the right sum, or finding a deal that results in exactly the needed gain at the right moment given the natural course of events? Such coincidence (it is claimed) can only be the result of Divine intervention.

I won't try to dissuade anyone from thinking along these lines, but the sword is double-edged. I don't know what it says about my personality, but I always find it easier to apply the same reasoning to negative outcomes rather than positive. Sometimes a ma'aseh turns out so badly that it seems only Divine intervention can explain what happened. When you consider a 158 year old company (Lehman Bros.) drive to bankrupcy in the course of weeks, insurance giants (AIG) reduced to nothing, banks one after the other on the verge of failure, one is faced with either assuming the best minds in business simultaneously have all been overtaken by a bout of very contagious stupid disease, or someone up there is pulling the strings in ways that are just out of everyone's control.

R' Elchanan in one of his ma'amarim, which if I recall correctly has no date attached but must have been written in the '30s, writes that the failing of the economy (at the time of his writing) was not caused by a lack of money, as plenty of people still had fortunes and great wealth. The economy failed because of a loss of confidence in the institutions of finance - a loss of faith in the economic system. What was true then is certainly true today, as the credit crunch is primarily a loss of confidence and trust. The key to understanding this phenomenon is the principle of middah k'neged middah. R' Elchahan writes that a loss of faith in worldly institutions comes about because of the greater loss of faith in our spiritual institutions - a failing of emunah. And only through the strengthening of emunah can we find the tools to emerge from such a crisis.

I am not a big fan of prophetically trying to attribute specific outcomes or events to specific sins, but I pass on R' Elchanan's insight for whatever it's worth. It's certainly worth spending a minute thinking about as the Dow and S & P find their way to lower and lower depths.

Thursday, September 11, 2008

new issue of Kallah Magazine

The new issue of Kallah Magazine ( put together by my wife came out today. You can already find copies in Queens and the 5 Towns -- NJ, Brooklyn, and others will have to wait until after Shabbos/next week.

homewoner mitzvos - ma'akeh and mezuzah

"Ki tivneh bayis chadash v'asisa ma'akeh l'gagecha". The Torah presents the mitzvah of ma'akeh, the command to build a fence around a roof or dangerous obstacle, as a necessary task when building a new home. However, the halacha is that even if one remodels an old home, or moves into an old home that lacks a proper fence, one is still obligated in the mitzvah of ma'akeh. Why does the Torah place the mitzvah specifically in the context of building a new home? The Netziv explains that the Torah is sending us a mussar lesson. Building and moving into a new home is an auspicious occasion, and it is only fitting that such an occasion be used not just move furniture and the appliances, but to do mitzvos. Ma'akeh is a way to seize the opportunity to lay such a mitzvah foundation.

But why teach this lesson using the example of ma'akeh? I would guess that only a small minority of homeowners have actually had the opportunity to perform the mitzvah of ma'akeh. Yet, every single owner of a new home has the opportunity to perform a different mitzvah -- the mitzvah of mezuzah. Why does the Torah not make the point that a new home should be established through performance of mitzvos by using the illustration of mezuzah?

The Netziv switches hats to halachic analysis to answer this question. He suggests a fundemental difference between ma'akeh and mezuzah: there is a prohibition of living in a home which does not have a ma'akeh installed; however, there is no prohibition of living in a home without a mezuzah. Such an argument is easy to digest if one accepts that ma'akeh is a lav while mezuzah is only a mitzvas aseh (as the Rambam holds) , but the Netziv goes a step further and makes his argument even according to Tosfos (Kiddushin 36) who holds that the lav of ma'akeh can be avoided so long as one intends to build one at a later time. Given that both ma'akeh and mezuzah are mitzvos aseh, why should there be a distinction? The Netziv explains (and further elaborates in Ha'amek Sh'eilah 126:7) that the mitzvah of ma'akeh is a prerequisite to moving into a home. However, the mitzvah of mezuzah is incumbent upon the resident of a home, i.e. the mitzvah does not take effect until after one has moved in. Ideally, one should perform the mitzvah of mezuzah immediately afterwards, but if one is prevented from doing so for whatever reason, one is not required to move out. In a nutshell, fulfillment of ma'akeh is a necessary condition of setting up residence; setting up residence is a necessary condition of becoming obligated in the mitzvah of mezuzah. Similar words, but very different outcomes. Moving in without a ma'akeh is an active violation of a mitzvah. Moving in before affixing a mezuzah merely establishes acondition of residence; the contination of that state of residence without a mezuzah is a passive violation of the mitzvah which should be performed.

This chiddush of the Netziv helps answer a question raised by R' Akiva Eiger (Shu"t Mh"K #9). R' Akiva Eiger asks why is it that every person who goes on an extended trip (e.g. spending the summer in a bungalow colony) does not make a bracha on the mitzvah of mezuzah when re-establishing residence in one's home? The implication of the question is that the act of taking up residence is what generates the obligation to affix a mezuzah, and hence when that act recurrs, a new obligation and new bracha is required. According to the Netziv, this is not the case at all. The act of taking up residence is not a mitzvah act; it is just a means to establishing a condition necessary for the mitzvah of mezuzah to then take effect. Once residnce is re-established, one cannot remain in a passive state without a mezuzah affixed to one's door, but since the mezuzah is already up, such a condition is automatically avoided. No new mitzvah occurs, and no new bracha is required.

Tuesday, September 09, 2008

minuy melech and binyan hamikdash

In a comment to the last post Anon1 referd to a statement by R' H. Shachter based on a Ramban in P' Korach that the requirement of the mitzvah of malchus is to establish a Jewish government, not necessarily a Jewish monarchy. I do not have this sefer of R' Shachter's to check the source, but my guess is that the Ramban in question is 16:22 (if not, this post can stand on its own.) The Ramban writes that Bnei Yisrael were guilty of delaying the building of Mikdash because they failed to seize the opportunity to start construction in the days of the shoftim. Instead, they waited until David HaMelech took the initiative. The Ramban's comment seems puzzling in light of Sanhedrin (20) which which presents the order of mitzvos Bnei Yisrael must perform upon entering Eretz Yisrael. The gemara writes that first the mitzvah of appointing a King must be fulfilled, and only afterwards can the mitzvah of building a Mikdash begin. If so, during the days of the shoftim, when no king had yet been appointed, there did not yet exist the possibility of starting construction on the Mikdash. How could BN"Y be accused of delay? QED, some (possibly R' Shachter) would argue, according to Ramban the shoftim were considered a fulfillment of the mitzvah of malchus by virtue of being a Jewish government.

It is possible (see Margoliyas haYam Sanhedrin 20:20) to salvage the Ramban without necessarily being forced to such a sweeping conclusion. Perhaps we can distinguish between the need for malchus as a prerequisite for binyan Mikdash, for which any form of Jewish government suffices, and the mitzvah of establishing a monarchy as an indepedendent goal in its own right, which might demand specifically the appointment of a king.

Sunday, September 07, 2008

the mitzvah to appoint a king - is democracy assur?

One the one hand, Chazal teach us that appointing a king is one of the 613 mitzvos, yet on the other hand, the Torah presents the idea of appointing a king as a response to the demands of the people, "V'amarta asima alay melech…", implying that where there is no demand, there is no requirement to appoint a king. The Netziv explains that there is no contradiction. The mitzvah of appointing a king does not require imposing a monarchy willy-nilly. There is a built-in condition to the mitzvah that calls it into effect only should the people demand a monarchy. In some countries a democracy may be the preferred form of government, in other countries other systems may work. However, should the people demand a king, the Sanhedrin is commanded to then act on that demand and put in place a monarchy which conforms to the principles set down in our parsha.

[This post has been updated - the idea of an issur aseh which I mentioned originally is in fact rejected by the Netziv.]

Thursday, September 04, 2008

beis din of the city which performs eglah arufah

If a murdered body is found and the crime cannot be solved, the city closest to the body must perform the ceremony of eglah arufah found at the end of our parsha. The Netzi"v quotes a machlokes Bavli and Yerushalmi regarding the meaning of the declaration by the Zekeinim that "eineinu lo ra'u". The Bavli interprets the pasuk to mean that the Zekeinim were not aware of the victim; they did not knowingly ignore a stranger in their midst and send him off wandering alone in the wilderness without offering proper hospitality and a place to stay. The Yerushalmi, however, interprets the declaration to mean the Zekeinim were not aware of the murderer; they did not knowingly ignore a criminal in their midst and allow him to continue to prey on the innocent.

The Netziv suggests a nafka minah between the two approaches. The measurement to determine which city is closest only takes into consideration cities which have a Beis Din. What type of Beis Din is required? According to the Bavli, it would seem any Beis Din of three is sufficient. However, according the the Yerushalmi that reads the pasuk as addressing itself to Zekeinim who could punish a murderer, a Beis Din of twenty-three capable of carrying out capital punishment is required. The Rambam paskens that a B"D of 23 is needed.

The halacha is that the ir miklat city of refuge must have Zekeinim in residence. The Minchas Chinuch (410) questions what type of B"D is necessary and suggests the law of eglah arufah which requires 23 as a point of comparison. Based on the Netziv's approach one can distinguish between the cases. The requirement of B"D by eglah arufah according to the Yerushalmi is a function of the necessity of being able to administer capital punishment; the same requirement is not needed for ir miklat.

Tuesday, September 02, 2008

l'shichno tidrishu - nevuah as a requirement for binyan habayis

My impression from Rashi in last week’s parsha was that the halacha requiring a Navi to put a stamp of approval on the selection of the makom mikdash (Rashi on “l’shichno tidrishu”) was a one time event. The Navi was needed to identify the makom mikdash, but once selected, there is no requirement for further consent of a Navi to start building again.

R’ Ahron Soloveitchik in his sefer Perach Mateh Aharon is medayek in the Rambam otherwise. The Rambam prefaces his description of the mizbeiyach (Beis haBechira ch 2) with a historical overview – the mizbeiyach was the place from which the dust to create Adam was taken, it was the place Noach offered korbanos, it was the place of the Akeidah, and because of its great historical significance its location was known b’mesorah. Yet, continues the Rambam (based on Zevachim 62), the rebuilding of Bayis Sheni required that a Navi certify the location of the mizbeiyach. Even though there was no question as to where the mizbeiyach should be located, a stamp of approval from a Navi was still necessary.

I did a quick check of R’ Kalisher’s Derishat Tzion, which collects some of the correspondence between R’ Kaslisher and the Aruch laNer, R’ Akiva Eiger, and others regarding whether a mizbeiyach could be built to offer korbanos in contemporary times. The Aruch laNer raises an objection based on this gemara in Zevachim, but R’ Kalsiher seems to interpret the need for a Navi mentioned by the gemara as based on inexact knowledge of the makom mizbeiyach. Since we today have the kosel extant from Bayis Sheni (while those rebuilding Bayis Sheni had nothing), R’ Kalisher felt that we could figure out the makom mizbeiyach. I could not find any treatment of this Rambam in the letters, but I was skimming quickly.

Monday, September 01, 2008

shlichus and zechiya

I am admittedly biased in thinking of the Brisker derech as a the key to learning, but have been trying to push myself to appreciate and understand more of R' Shimon Shkop's derech. I haven't gotten down the Sha'arei Yosher enough to predict what he might say on a sugya, but at least I can say with some degree of confidence that the word "sibah" will appear somewhere in the explanation. My chavrusa has suffered though some of the first sha'ar with me, and my son has been a guinea pig for learning through some other scattered pieces. This almost led to the unintended consequence of my son coming to the conclusion that R' Shimon was brilliant and that this Brisker stuff did not have much to offer. Baruch Hashem, a few months more maturity in his learning has led him to see the light. This past Shabbos he told me that he found a R' Baruch Ber that addresses the exact gemara we had previously discussed in a piece in Sha'arei Yosher and (of course!) R' Baruch Ber's approach was far superior. Here is the sugya:

The gemara (Bava Kama 102b) discusses a case where a shliach charged with purchasing goods changes the order and purchases a different item. For example, Reuvain is charged with buying wheat for Shimon, and instead purchases barley. According to one braysa, if the price of barley goes up, Shimon still collects a share of the profit. Why? One explanation offered is that this braysa follows the view of R' Yehudah that shinuy eino koneh, and the shliach's change does not make him the owner of the barley.

The Bnei Ma'arava laughed at this explanation -- true, shinuy aino koneh, but the barley seller thinks he/she is selling barley to Reuvain (the shliach), not Shimon. How does Shimon come to own the barley if there is no da'as makneh to sell barley to him?

The gemara retorts: but even if Reuvain correctly carries out his shlichus and buys wheat for Shimon, there is no da'as makneh to sell wheat to Shimon -- the seller only knows about Reuvain and thinks he/she is selling to him!

R' Abahu replied that the point of the Bnei Ma'arava is valid. If Reuvain correctly carries out his charge, he fulfills the criteria of shlichus. Only if Reuvain changes the terms of his charge and is no longer acting as a shliach does the question of seller's intent (da'as makneh) come into play.

A little elaboration before getting to the heart of the problem: The halacha is that zachin l'adam shelo b'fanav, an person can aquire something on another's behalf without being officially appointed an agent provided there is no downside. In our case, even if Reuvain gets the order wrong, since there is only an upside gain, Reuvain should theoretically be able to act through zechiya as Shimon's agent even unappointed. The barley should belong to Shimon, who would share in the profit. So why do the Bnei Ma'arava assume that a lack of proper da'as makneh, the fact that the seller thought he/she was selling to Reuvain and not Shimon, is a fatal flaw in this theory of zechiya that allows Reuvain to act as Shimon's agent, but if Reuvain correctly fills the order as charged, acting as Shimon's appointed agent through the theory of shlichus, the issue of da'as makneh, who the seller thought he was selling to, is irrelevant ? In both cases Reuvain is acting on behalf of Shimon -- shouldn't the same rules of kinyan apply to both scenarios?

The punchline of the sugya and the distinction being drawn opens the door to explaining other issues, but you need this as a starting point. If you are a Telzer, see Sha'arei Yosher end of 7:7. If you are a Brisker, see Birchas Shmuel in Kiddushin 15:4.