Volume 17 Number 30
                       Produced: Sun Dec 18 10:35:04 1994

Subjects Discussed In This Issue: 

         [Zvi Weiss]
Chassidic shechita
         [David Charlap]
Kashrus Question
         [Gedaliah Friedenberg]
Legal Fictions
         [Akiva Miller]
Legal Fictions and the Spirit of the Law
         [Micha Berger]
Payment for Work on Shabbos (2)
         [Meylekh Viswanath , Robert Rubinoff]


From: Zvi Weiss <weissz@...>
Date: Thu, 15 Dec 1994 08:58:50 -0500
Subject: Cantillation...

Another example where the Trop is crucial is in Ki Tissa... If one reads,
Vayikra (pause) Bshem Hashem --- then it means "And he called out the Name of
Hashem" (cf. Bereishit by avraham avinu).  If one reads the correct manner of
Vayikra Vshem (pause) Hashem -- then it means "And he called out to Hashem by
Name" which is a very different meaning.  I believe that Rashi in Ki Tissa
makes this point.



From: <david@...> (David Charlap)
Date: Wed, 14 Dec 94 17:14:52 EST
Subject: Chassidic shechita

David Maslow <MASLOWD@...> writes:
>In M-J vol 17, no 4, David Charlap gave an example of how to fill out his 
>proposed Kashrut organization information sheet, and stated in the exception 
>>For instance, Chassidim don't accept OU-certified meat, but only meat from 
>>groups that demand the higher tolerances of kashrut that Chassidim demand.

>While I would welcome information from more knowledgeable experts, it
>was my understanding that the difference between Chassidishe shcita
>(ritual slaughter) and others is the way the knife is sharpened and the
>shape of the finished cutting edge.  If this is true, and I am not
>discussing glatt vs.  non-glatt, then it is wrong to suggest that
>Chassidim "demand...higher tolerances of kashrut" when all that is
>involved is a different interpretation.

You're right that the difference is in how the knife is sharpened, etc.
And I'm right that this is a "higher tolerance" of kashrut.  Chassidic
shechita is not unacceptible to non-Chassidim, but not vice versa.

This seems to me a clear case of "more strict".  Their shechita is
acceptible to all of Judaism, but the shechita that most of orthodoy
considers OK is not acceptible to them.

Anyway, my point isn't to discuss Chassidic shechita.  I merely used
this as an example of people who don't accept the O-U hashgacha on


From: Gedaliah Friedenberg <gedaliah@...>
Date: Fri, 16 Dec 1994 14:41:44 -0500 (EST)
Subject: Kashrus Question

I have an urn of hot water.  I have something milchig (dairy) in
a cup.  If I open the tap on the urn, and create a constant flow of
water from the urn unto the cup (with milchig contents), does the rest
of the water in the urn become milchig?  (does the milchig-ness travel
up the column of flowing water?).  Someone told me that this is the
case (the water in the urn becomes milchig), but I think that we do
not poskin this way (from a gemorrah in Avodah Zara if I recall).

Gedaliah Friedenberg


From: <Keeves@...> (Akiva Miller)
Date: Sun, 18 Dec 1994 09:40:02 -0500
Subject: Legal Fictions

On the question of legal fictions, Bobby Fogel (MJ 17:21) writes:

>                                   Can someone please tell me on
>what TORAH authority do we institute such a contortion of the Torah's
>laws because it is expedient.  If this is the case, what problem do we
>have with half of the Conservative and Reform compromises with regard to
>expediency.  If you counter that their compromises violate Torah Law,
>well so did payment for work on shabas until we found the proper

Mr. Fogel's error is in thinking that "payment for work on shabas" is a
Torah violation. Business dealings were forbidden *by*the*rabbis*
because they might lead to writing (which IS a Torah violation) and/or
because they are not in the spirit of the day. But if someone reads the
Torah on Shabbos morning, or babysits on Friday night, or does any other
permissible activity, there is absolutely nothing wrong ON A TORAH LEVEL
with taking money out of one's pocket to pay the individual.

It is true that legal fictions are recognized by Halacha, but never as a
way to violate a Torah law, only as a way to "get around" a rabbinic
law. It is important to note that the same rabbis who instituted the
prohibition are those who invented the loophole. I offer two common
examples: Selling chometz, and carrying in an eruv. (1) The Torah does
not actually require us to remove chometz from our homes before
Pesach. Torah law is satisfied by simply making our chometz
ownerless. The rabbis strengthened that law and told us to go looking
for it all so that it can be disposed of, but they also allow it to
remain in the house if it is sold to a non-Jew and certain other
conditions are met. (2) According to the authorities who allow an eruv
around a city to be used, the Torah does not prohibit carrying in those
streets on Shabbos. To avoid confusion between the streets where the
Torah allows carrying, and the main roads where it doesn't, the rabbis
forbade carrying outdoors anywhere on Shabbos, *unless* a particular
area is marked by the erection of an enclosure.

Akiva Miller


From: <berger@...> (Micha Berger)
Date: Thu, 15 Dec 94 08:23:37 -0500
Subject: Legal Fictions and the Spirit of the Law

(We have to get a better name for the concept than "spirit of the
law". This term has origins in the NT, and refers to Yeish"u in
distinction to Halachah.)

In the case of the ba'al korei, you are paying him to prepare. You
would like, as a favor, to reap the rewards of this
preperation. However, this part is only a favor -- and if he would
oversleep, you would (as said before) still have to pay him.

However, if the fellow regularly oversleeps, you may decide to pay
someone else to prepare, one who will -- out of pure gratitude for
giving him the job -- will lein for you Shabbos morning. No one says
you MUST pay ingrates.

But that is not the real point of this discussion. The discussion is
really about
> I maintain, also, that legal fictions like this are quite detrimental to
> orthodoxy being accepted by many of our secular Jews.  They see it as
> silly, a violation of something we ourselves espouse and ethically
> untenable.  Not to mention many yeshiva students who have left the fold
> over things like this that they view as obvious violations of the spirit
> of that which they thought Hashem wanted from them.  Any comments.

It is the fallacy of the other movements that halachah is
understandable. In Reform, this is because they think man wrote the
Torah. In Conservative, they teach that the halachic process is the
product of human forces shaping halachah, as opposed to the other way

But either way, the teaching is that halachah is understandable. This
opens it up to mutability. If we know the goals of Torah, we can reach
those goals in another way.

G-d gave us the Torah. He also controls destiny. We can understand the
true reason for a mitzvah -- in this case Shabbos -- no more than we
can understand His reason for letting a painter run all over Europe
and parts of Asia and Africa killing 1/3 of our people. G-d's motives
are inherently incomprehensible.

This does not pardon us from trying to take lessons from history, or
from the mitzvos. It just means that the _ultamite_ reason is beyond us.
Some peice of understanding we can get, but it's just that -- an
incomplete peice.

The only way, in the absence of knowledge of the spirit of the law, to
truly know what G-d wants is to follow the letter of the law. We know
that Hashem can perfectly frame His thoughts so that the "letter"
exactly matches his intent -- EVEN IF the "letter" allows loopholes.
You think G-d couldn't have plugged up those loopholes had He not
wanted to?

Hirsch ridicules the term Wissenschaft der Judentums (the Science of
Judaism) that was often used by the Reformers of his day. True science
is to take the experimental data and create a theory to describe
it. To reverse the process, to start with a theory and create
experiments to fit, is alchemy.

Reform is Jewish alchemy. They have a predisposed notion of right and
wrong, and what to change halachah to fit. True Judaism IS a
science. The experimental data is the halachah, loopholes and all, now
we have to create a hashkafah (philosophy) to match it.


From: Meylekh Viswanath  <PVISWANA@...>
Date: Wed, 14 Dec 1994 10:47:04 EST5EDT
Subject: Re: Payment for Work on Shabbos

Bobby Fogel questions some of the replies to his initial query regarding 
halakhic devices to permit actions that seem to be going counter to the 
spirit of halokhe.

He cites Jonathan Katz's reply:
> Jonathan Katz counters that indeed it is a legal fiction but it is
> needed since:
> >..... in today's world, this would lead to a shortage of Rabbis willing
> >to work, which is clearly not a desired effect. So, to strike  a balance,
> >the letter of the law is upheld even though the spirit may not be 100%.

He says further:
> I also do not think that one can invoke "Ays la-a-sot la'hashem hay-fay-ru
> torah-te-cha " or loosley translated in order to preserve Hashems Torah
> there are times that it must be broken.  An example of which was the
> writing of the torah shebaal peh (oral torah) by Rabbi Yehudah Hanasi

He rejects attempts to explain the pay for shabes work as being actually 
payment for work done before shabes.  He points out that a baal korey 
who didn't show up for shabes leyening would be sacked, even if he 
had prepared before shabes (and 'earned' his money).

> I maintain, also, that legal fictions like this are quite detrimental to
> orthodoxy being accepted by many of our secular Jews.  They see it as
> silly, a violation of something we ourselves espouse and ethically
> untenable.  Not to mention many yeshiva students who have left the fold
> over things like this that they view as obvious violations of the spirit
> of that which they thought Hashem wanted from them.  Any comments.

I think Bobby's points are well taken. Regarding the particular issue 
under discussion, I always understood that the principle was 
'havlaah,' or 'swallowing up.'  That is, the work does include shabes 
work, however, the shabes work is a part of (is swallowed up by) the 
larger task, which is done on erev shabes or khol, as well. This is the 
principle which I believe is also applied in certain instances of work done 
by a non-jew for a jew on shabes, which is prohibited miderabbanan.  
The issue under discussion here is also a violation of a rabbinic edict, 
which I suppose is the ban on contracting 'kinyanim.' 

 "Eys laasos lashem" works as a response, but it's obviously very 
dangerous.  Who decides what qualifies?  A conservative vaad?

I think that we can assume that we know the 'spirit' of any given law,
independent of the words.  And the words are always subject to
interpretation.  If the interpretation changes, the 'true' meaning of
the words changes.  The degree of the change under consideration
indicates the degree of approbation/legal explanation it requires.  From
whom, you ask.  I believe that, too, is related to the degree of change
under consideration.  If a new interpretation is not too radical, I
might accept it from my moreh de asra (rabbi); if it is very radical, I
might require a gadol.  And even then, I think, it ultimately requires
the approbation of klal israel (doesn't the talmud say regarding
gezeiros that only those that the people can 'tolerate' can be imposed?
And don't we have many cases of minhagim, where poskim say 'this is not
correct, but it's minhag israel, so what can we do,' or 'this doesn't
seem to be defensible, but it's minhag israel, so there must be a good
reason).  However, in most cases, except the ones where an application
of 'eys laasos lashem' is very obvious, I would think that only accepted
talmudic dictums, arguments etc; may be used.  That's why the principle
of havlaah would be acceptable in the case in hand, even if it was an
'innovation' at a certain point in time.

I think the issue raised by Bobby Fogel is very important, so I hope some 
of the halakhically better trained people on mj will speak up.


From: <Robert_Rubinoff@...> (Robert Rubinoff)
Date: Fri, 16 Dec 94 14:13:30 EST
Subject: Re: Payment for Work on Shabbos

> >From: Stan Tenen <meru1@...>
> Bobby Fogel asked for comments on his posting, m-j 17,21.  In my
> experience, I must agree with him: "I maintain, also, that legal
> fictions like this are quite detrimental to orthodoxy being accepted by
> many secular Jews."  This type of seeming hypocrisy did deter me from
> any serious interest in Judaism when I was younger (and perhaps
> unrealistically idealistic.)  It currently deters many of my Jewish
> mathematician and scientist friends.  We do need to support our
> (Shabbos) teachers, but we should not make use of shortcuts and half-
> truths if we want to gain the respect of the more perceptive persons we
> are trying to reach.

That's all well and good, and I even agree with it.

Now: tell me how we are going to have people to do the work necessary on
shabbat without such legal fictions.  Specifically: how can a shul hire
a Ba'al Kriah (the bulk of whose "visible work" inevitably takes place
on Shabbat and Yom Tov) without such "legal fictions".  (Of course, one
possibility is to have a volunteer corps of readers...but what if the
shul has tried that without success?)

Or are shuls obligated to accept that the Rabbi won't always show up on



End of Volume 17 Issue 30