Volume 17 Number 39
                       Produced: Tue Dec 20 22:28:41 1994

Subjects Discussed In This Issue: 

Does a (knitted woollen) scarf need Tzitzit?
         [Immanuel O'Levy]
Mitzvat Yishuv Eretz Yisrael.
         [Gilad J. Gevaryahu]
The term "legal fiction"
         [Jeff Mandin]
The very first syag (2)
         [Jeremy Nussbaum, Akiva Miller]


From: <imo@...> (Immanuel O'Levy)
Date: Tue, 20 Dec 94 16:41:47 GMT
Subject: Does a (knitted woollen) scarf need Tzitzit?

I have a question which, at first glance, seemed fairly straightforward,
but it seems to have uncovered all sorts of other issues.  The question
is this: Does a (knitted woollen) scarf need tzitzit?

To be more precise, I have a scarf which is 10.5 inches wide and just
over 10.5 feet long.  It has been knitted from wool.  The Mishnah
Berurah seems to define in Simman 10 of the Laws of Tzitzit the minimum
size for a garment to be in order to be liable for tzitzit, and this
would appear to be a garment on which a rectangle half an ammah by
three-quarters of an ammah can be placed.  So, how long is an ammah?
I've come across definitions of an ammah ranging from 18 inches to 24
inches, which means that half an ammah is anything from 9 inches to 12
inches - the width of my scarf is exactly in the middle!

The first problem, then, is how do I decide what to use an ammah?  There
seems to be a doubt as to whether my scarf is wide enough to require
tzitzit, depending on how long one takes as an ammah.  I asked the
person with whom I was learning this whether I could just put tzitzit on
in order to satisfy this doubt but not make a blessing over them because
of the doubt?  He told me that I could do this, but would not be able to
wear it on Shabbos in case the scarf is exempt from tzitzit, in which
case I would be carrying the tzitzit as they would be non-functional.
My second question is, therefore, can't I make a condition that if the
scarf is exempt from tzitzit then they're there for decoration, but if
not then they're there as tzitzit?

A way round this could be to make sure that the scarf is definitely not
required to have tzitzit.  This can be done by rounding one of the
corners.  The Mishnah Berurah says that corners which are "round" are
not counted as corners, but doesn't seem to give a definition for
"round".  The Biur Halachah merely says, "tzorich iyyun".  (Requires
further study.)  So, my third problem is, what's the definition of a
round corner?

A fourth question that arose concerns coloured tzitzit.  Red tzitzit can
be made for a red garment, green tzitzit for a green garment, and so on.
What is the rule for a multi-coloured garment, such as my scarf?  Can
one put multi-coloured tzitzit on, or tzitzit of the same colour as the
wool where they go through the scarf?  Or can one only use white tzitzit
on a multi-coloured garment?

A fifth question concerned whether I could wear the scarf without
tzitzit at night time.  I've been told that the argument concerning
whether one may wear a day-time garment at night without tzitzit is a
somewhat long- running one, from the times of the Berysas to the Chazon
Ish.  It would seem, however, that this is not allowed, although are
there any opinions which say that it is.

Finally, can a woman wear this scarf without tzitzit?

The scarf that I have is quite a nice one, and it would seem a shame not
to be able to wear it.  Any comments or suggestions which will help me
solve these matters would be greatly appreciated.

 Immanuel M. O'Levy,                               JANET: <imo@...>
 Dept. of Medical Physics,                        BITNET: <imo@...>
 University College London,                     INTERNET: <imo@...>
 11-20 Capper St, London WC1E 6JA, Great Britain.         Tel: +44 71-380-9704


From: <Gevaryahu@...> (Gilad J. Gevaryahu)
Date: Tue, 20 Dec 1994 13:33:57 -0500
Subject: Mitzvat Yishuv Eretz Yisrael.

In MJ17#37 Ari Shapiro discusses in brief the issue of the commandment
today to conquer Erez Yisrael.

There are many explanations and opinion as to Rambam's omission in Sefer
Hamitzvot (SH) of Mitzvat Yishuv Eretz Yisrael (EY), and the inclusion
by the Ramban (the fourth hasagah).

I'll list some of them in summary form due to MJ imposed restriction of

1.Rambam did not include in SH items which are required under other
mitzvot (the fifth general rule).  Since the inheritance of EY is the
aim of many mitzvot, there was no reason to include this mitzva
seperately. (Rabinovitch, Tehumin 4, p.306)

2 .Rambam included in SH only mizvot which were given to Moses in Sinai,
but Mitzvat Yishuv Eretz Yisrael was given already to the avot, and
therefore it is external to the 613. (Goren, Torat hashabat vehamoed,

3 .Rambam did not include Mitzvat Yishuv Eretz Yisrael because it
applied only from the time of Moshe Rabbeinu until they were sent into
exile, after the exile this mizvah will not apply until Mashiach
time.(DeLeon, Megilat Ester)

4. Rambam forgot to include it in SH. (Slozki, Shivat Zion, part 2, p.3)
(Ovadia Yosef, Yechave Daat, part 5, p.258)

5. Rambam did not include this mitzvah since there was no significant yishuv
(number of Jewish people) in EY at the time and no Jewish malchut, and this
mizvah will apply only if there was an autonomous significant yishuv.
(Shveid, kivunim 2, p.25 )

6. Rambam did not hold that there was such a mitzvah d'oraita (Hankin, Bnei
Banim, part 2, p.165)

There is some correlation between the dweling places of the writer and his
opinion . For example, Ramban lived in Israel (in the last part of his life)
and he sees a specific mitzvah of yishuv ha'aretz, Ramabam did not live in
Israel, and he does not list it in SH. [I am sure that MJ readers will jump
on me for this one, because it implies that daat torah is being influenced by
personal experince]

I recently finished a small article (50 pages), which is a collection of the
sources (and some discussion) on the issues of territorial compromise. In
this article I also included other important teshuvot on the issue of Yishuv
EY such R. Feinstein,Y. Teitelbaum, Bleich, and I'm looking for an achsaniah
for it.

Gilad J. Gevaryahu


From: Jeff Mandin <jeff@...>
Date: Tue, 20 Dec 94 18:41:46 -0500
Subject: The term "legal fiction"

Steven Friedell writes:

>     The Rosh solves these three difficulties by using legal fictions.
>He says that although the informer does not touch the object, "He is
>like one who burned it and acted against the property itself."
>Similarly, although the violent person takes the goods some time after
>they are pointed out to him, there is no problem of lack of immediacy
>because "when he pointed them out it was as if he burned them."  The
>Rosh solves the problem of the indefiniteness of the injury by saying
>that once goods are pointed out to a violent person "it is as if put in
>a bull's net, for Scripture compares [pointing out objects to a violent
>person] to a bull in a net for it is certain that no one will have mercy
>over it."  Rosh, Bava Kamma 9:13.

I heard a terminological distinction from Dr. Chaim Soloveitchik that I
think is useful here.  He applies the term "judicial construction" to 
rulings such as this one(ie. broad application of terms/concepts so 
that the result accords with what seems to the posek to be intuitively 

Dr S. reserves the term "legal fiction" to refer to an legal device
designed to attain a specific result.  The legal fiction is generally
airtight in its construction, but does not obviously reflect underlying
reality(eg. the sale of chametz).


From: <jeremy@...> (Jeremy Nussbaum)
Date: Mon, 19 Dec 94 0:56:12 EST
Subject: Re: The very first syag

> >From: <jeremy@...> (Jeremy Nussbaum)
> > >From: "Yaakov Menken" <ny000548@...>
> > I didn't find a corresponding Da'as Zekeinim, but Rashi says that Chava 
> Teaches me to cite from memory at work :-)

I apologize for responding to my own posting.  Now that I have a chumash
in front of me, I can cite page and verse.

Bereishit 1:4 states the the after chava tells the serpent that God
has commanded them not to eat or touch the fruit of the tree of
knowledge, lest tehy die, that the serpent replies that indeed they
won't die.  Rashi comments that the serpent pushed chava till she
touched the tree, and then, after nothing happened, told here that
nothing would happen to her from touching (or eating from) the tree.

The siftei chachamim there, number 3, has a long analysis of what must
have gone on for all this to make sense.  It's the line of reasoning
there that my class challenged our substitue teacher with.

The Midrash Rabbah quotes a midrash in the name of R. Hiyya, upon
which the Rashi is likely based. (MR Bereishit, chapter 21 paragraph
3) I paraphrase the Soncino translation:

So it is written (Mishlei 30:6) "Add not to His words, lest He reprove
you and you be found a liar."  R. Hiyya taught: That means you must
not make the fence more that the principal thing, lest it fall and
destroy the plants.  So God said, "For in the day that you eaat
thereof you shall die," whereas she said "God said: You shall not eat
of it or touch it."  When the serpent saw her thus lying, he took and
thrust her against it.  "Have you died?" he said to her; "just as you
were not stricken through touching, so you will not die when you eat

Ginzberg cites Pirkei Rabbi Eliezer, 13, which I do not have.  If
someone can send me the relevant quote, I would appreciate it.

In the Avot Derabi Natan in the back of Sanhedrin, 1:7, R. Yosai quotes
a proverbs, "Better a wall ten tefachim high that stands than a wall a
hundred amot high that cannot stand," and applies it to the incident
with Adam and Chava.  In fact, the plain text reads "What (mi) caused
this touching?  The syag that that Adam made.  From this they said,
"if a man makes a syag for his words he won't be able to abide by it."
>From this they said one should not add on to what one hears.  The
commentaries take this to mean that one should explcitly attribute the
prohibition to a syag, or that the syag should not be greater than the
original prohibition.  The binyan Yehoshua there ends a paragrah on
the matter saying that the intent here is that one should not make the
syag greater that the original matter, rather one should use
discretion, at times adding some, at times subracting some according
to the need of the time.

The Siftei chachamim eventually asks how it was that touching was
proof to chava, and answers that God spoke originally to Adam, and he
added an admonition to Chava not to touch, because "Nashim da'atan
kalot." (This phrase is used in a number of places, and I'm not sure
of a good translation).  So Chava thought in good faith that God had
actually commanded them not to touch the tree, and the arguments of
the serpent convinced her.  A further question is asked about the
accidental nature of her touch; why should she be punished for being
pushed into the tree (a question many a child who got into trouble
after being pushed by someone else is probably asking as well)?  The
answer given is that Chava presumed that the tree was like poison and
she would at least sicken immediately from touching it and die
eventually. (Now where Chava was supposed to have gotten the idea of
poison from I don't know.)

Jeremy Nussbaum (<jeremy@...>)

From: <Keeves@...> (Akiva Miller)
Date: Tue, 20 Dec 1994 00:30:51 -0500
Subject: The very first syag

Yaakov Menken once wrote, about Adam and Chava and the tree:
>Adam, intending to keep her from sin, told her not 
>to even touch it - but made the mistake of explaining this AS IF THAT 
>Now this is not a "syag" (fence) at all, but today would be called a 
>transgression of "Bal Tosif" - not adding on to G-d's command.  The 
>lesson:  making fences around the Torah is _good_ - but claiming that 
>they are themselves Torah commandments is _bad_.

In MJ 17:31, Jeremy Nussbaum responded:

>IMHO, in practice, this distinction between a syag promulgated as a syag
>vs a syag promulgated as God's command (or as halakha per se) does not
>seem to hold up.  Sure, the promulgator and his students know the origin
>of the syag.  Then there are the next set of people who hear it and then
>the next set, and soon it blends into the halakhic rubric.  After all,
>who distinguishes between mixing poultry and milk from mixing meat and
>milk, and both of those from cooking meat and milk. 

Jeremy is unfortunately correct when he points out that too few people
understand the distinction between different levels of meat/milk
combinations. The problem is that he seems to accept it as the norm. G-d
Forbid!! And in fact, He does forbid it!! The rabbis are given permission to
add new halachos only if they make it clear that the new halachos are merely
rabbinic. Otherwise, the new halacha is in clear violation of Bal Tosif, and
I have always looked to Adam and Chava as the simplest example of this.

It is very unfortunate when people fail to grasp the distinction between
Torah and Rabbinic mitzvos. This confusion has led to sad results time and
again. In fact, this very week, Mail Jewish is witness to this very subject,
in the recent postings about paying people to work on Shabbos. Chava thought
that the tree was forbidden by "Torah" law, and it got us kicked out of the
Garden. Others think that it is forbidden by the Torah to pay the Rabbi for
his Shabbos sermon, and respect for the halachic system is suffering
terribly. We are fortunate that the poster verbalized his complaints in a
forum where he can learn, and he is fortunate to have an attitude of being
willing to learn. There is one and only one solution to this mess - we have
all got to be more diligent in our Torah Study. Jeremy is correct that
details tend to get lost - unless we work hard on learning those details!

Avi, thank you for a place which reminds me of my old Beis Medrash. (I do
plan to send my donation soon, bli neder.) And everyone out there who is
reading this - keep on learnin'!

Akiva Miller


End of Volume 17 Issue 39