Volume 31 Number 97
                 Produced: Tue Apr  4  4:24:35 US/Eastern 2000

Subjects Discussed In This Issue: 

         [Carl and Adina Sherer]


From: Carl and Adina Sherer <sherer@...>
Date: Wed, 29 Mar 2000 01:15:15 +0200
Subject: Aliya

[Note: Carl sent this is as three posts, which I have combined into
one. All three deal with responding to the mareh m'komos which Yosef
Braun presented in an earlier posting as as supporting that there is no
mitzva to live in EretzYisrael today. Mod.]

Yosef Braun has given us a lengthy list of mareh m'komos which, 
he alleges, support his view that there is no mitzva to live in Eretz 
Yisrael today. I decided to revisit those mareh m'komos, many of 
which I have researched in the past, because something told me 
they were being mischaracterized. I have not been through all of 
them yet (bli neder I will try to do that - fortunately there is an 
excellent Beis Medrash down the street from my house), but I have 
been through enough of them to say that my hunch was correct.

Yosef Braun writes:

>  Many rishonim maintain there is no such mitsva, particularly nowdays,
> see tosafot ketubot 110b s.v. hu; 

This is the famous "R. Chaim Cohen" Tosfos. 

Tosfos actually says:

1. That there is danger in going to Israel today.

Tosfos then allegedly brings a "R. Chaim Cohen" that says:

2. That there is no mitzva to live in Eretz Yisrael today because
3. We cannot properly fulfill the mitzvos ha'tluyos ba'aretz (land 
dependent mitzvos).

The only problem is that the Gilyon Maharsha on that Tosfos (in the back
of your Vilna Shas) cites a Tshuvos Maharit Chelek 2, YD 28. That
Tshuvos Maharit (to which we will soon return BE"H) proves conclusively
that the "R. Chaim Cohen" was NOT written by the Baalei HaTosfos, but
was a later addition of a "talmid toeh." In other words, there's no
"R. Chaim Cohen." As to the one reason Tosfos did bring - danger in
going to Israel - it should be clear to all of us that the metzius
(state of facts) has changed when anyone can hop on an El Al plane and
be in Israel in a matter of hours.

> this is also the implication of rashi berachot 57a s.v. berets 

I don't see that in Rashi at all. The Gemara there says that if one sees
oneself standing naked in a dream, if one is in Bavel, it means that he
is without sin, while if he is in Eretz Yisrael, it means he is without
mitzvos. Rashi comments regarding the man who is in Bavel, "Because
chutz la'aretz has no merits, but there is sin in living there, so that
if he is standing naked, he is without sin." Regarding Eretz Yisrael,
the Rashi cited by Yosef Braun states, "Because many mitzvos are
dependent on it, and the fact that he is standing naked means that he is
without its mitzvos."  (Both translations mine - C.S.). How the second
Rashi proves that Rashi holds there is no mitzva to live in Eretz
Yisrael today is, as my children would say, "nisgav mi'binati" (far
beyond my comprehension).

> and rashbam baba batra 91a s. v. ein. 

The Gemara there says that one may not leave Eretz Yisrael to chutz
la'aretz unless two seah of wheat cost a sela (I leave it to others to
define how much that is. IIRC there was a post about a year ago from
R. Shalom Kohn that explained these calculations).  Rashbam there
comments "Mipnei shemafkia atzmo min hamitzvos." (That by leaving Eretz
Yisrael one is excluding himself from mitzvos). The Gemara then goes on
to describe how Elimelech, Machlon and Kilyon sinned by leaving Eretz
Yisrael (described in the book of Ruth). How this proves that the
Rashbam holds there is no mitzva to live in Eretz Yisrael today is,
again, beyond my comprehension.

> Clearly the rambam doesn't consider it one of the 613, 

Even assuming that is correct (because the argument that it is not is a
long and complicated one, and the hour is late), all *that* means is
that the mitzva is not a Torah-level mitzva (d'oraysa).  There may
nevertheless be a Rabbinic command according to the Rambam.

> see megilat esther to ramban hosafot asin #4. 

The Megilas Esther seems to hold that the three shvuos (oaths) cited by
the Gemara in Ksuvos 111a are still in effect today, and that's why he
says there is no mitzva to live in Eretz Yisrael. But, as many of us
have pointed out several times over the last month or two, almost no one
(outside of Satmar - maybe) holds that the three shvuos are still in
effect today (see, e.g., my post in Vol. 31 #44).

> Regardless of other opinions, the halacha in shulchan aruch seems to
> follow rambam, because this mitsva isn't mentioned at all in s.a.

Which Shulchan Aruch are you using? :-) In mine, EH 75:3, it says, "from
Chutz La'Aretz to Eretz Yisrael [the husband] may force her to move,
even from a beautiful city to an ugly city, and even from a place that
is mostly Jews to a place that is mostly Kusim (non-Jews who converted
insincerely - see 2 Melachim 17) (translation mine).

> The halachot re exiting EY ; forcing one's spouse to ascend to EY
> etc. don't indicate any mitsva, for this is associated with kedushat
> and chibat ha'arets and not necessarily with yishuv ha'arets (see
> maharit vol. 2 #28;

This is NOT what the Maharit says. The Maharit, after he proves that the
citation of "R. Chaim Cohen" was a later addition of a "talmid toeh"
goes on to scoff at the notion of not being able to fulfill the mitzvos
of Eretz Yisrael today, and says that there is a mitzva to live in Eretz
Yisrael. The tshuva (responsa) there involved someone who had taken a
vow to go to Eretz Yisrael if his wife had a son. The wife had a son,
and the man became frightened because of the danger that was involved in
travelling. The Maharit concludes that since the man vowed only to visit
Eretz Yisrael, and there is no mitzva involved in visiting, and since he
was going to go without his wife and children, which would have left
them impoverished, which one is not allowed to do, and because of the
dangers involved in going for a purpose other than performing the mitzva
of living in Eretz Yisrael, the man was not bound by his neder
(vow). Curiously, at the end of the tshuva, the Maharit says that he
would not have written it out but for the man's request so that he would
have a "ksus einayim" (a cover) to show that he did not violate his vow.

[Post #2. Mod.]

I did say that I would try to finish responding to the sources cited by
Yosef Braun to prove that there is no mitzva to live in Eretz Yisrael
today. I am still missing three sources that I do not have at home, but
bli neder I will look them up the next time I can get to a Beis
HaMedrash if no one else has responded to them by then.  They are the
Maharit 1:47, the Chasam Sofer YD 234, and the Tashbatz 3:200 (my home
library is a little short on responsa literature if you hadn't noticed
yet - donations gladly accepted :-).

Yosef Braun writes:

>  The rationale for not encouraging aliya or refraining from aliya
> involves many complex issues. Amongst them are: the issur of aliya
> bi'choma ;

This is a reference to the Gemara of the three shvuos (vows) (Ksuvos
111a) which nearly all (non-Satmar) poskim hold does not apply
today. See [first part of post from last night above] and in Vol. 31
#44. Moreover, any one individual moving to Eretz Yisrael would not
constitute "kachoma," even if the issur did apply today.

> the prohibition to leave bavel (or any mi'kom torah - see mi'iri
> ketubot 110b and others);

I assume that Yosef means the Meiri in Ksuvos 111a s"v u'k'shem.  I
addressed that one in Vol. 31 #70, where I concluded:

"As I read the Meiri, he is saying that one should not leave a place
that is on the level of chochma (wisdom) and yiras chet (fear of sin)
that Eretz Yisrael is on min ha'stam (presumptively). But if one is not
in such a place, one should go to Eretz Yisrael. Eretz Yisrael is
different from other countries, because it is presumed to have these
fine qualities, while other countries are presumed not to have them."

How anyone can conclude that the US is on a level of chochma and yiras
chet comparable to the level that the Meiri references is beyond my

> the focus on nationality which unfortunately often replaced kiyum
> hamitsvot (see letters in tikkun olam) ;

I don't own a tikun ha'olam, but the unfortunate attempt to substitute
political zionism for Torah and Mitzvos R"L has no bearing on whether
there is a mitzva to live in Eretz Yisrael today, and cannot, IMHO
anyway, be cited as a justification for remaining in the galus.

> sakanat nefashot (see pitchei teshuva e. h. 75:5 for the definition of
> this term with regard to yishuv EY and re financial difficulties) ;

The Pischei Tshuva in 75:5 says nothing of the sort. I assume you are
referring to the Pischei Tshuva in 75:6. That Pischei Tshuva brings and
agrees with the Maharit I brought last night (i.e. he agrees that the
"R. Chaim Cohen" in Tosfos was a later addition of a mistaken
student). He says that sakana refers to dangers along the way, that the
definition of sakana changes with the times (and therefore, I would
argue, that there is no sakana today). He says, therefore, that one
could even go against the will of Beis Din that one stay in the galus!
He does say that one should go with a means of support and not have to
live off tzedaka, but I think we have been through that one already, and
the overwhelming majority of olim from the West are able to find jobs
today. In any event, he does not impose a requirement that one live in
the same luxurious standard in which one lives in the galus. He
concludes "Ashrei mi she'zocheh l'kach" (happy is he who is so
privileged to live in Eretz Yisrael).

> difficulty with kiyum mitsvot hateloyot ba'arets (see tosafot ketubot
> 110b,

This is one of the things said in the name of "R. Chaim Cohen" in that
Tosfos. See my post from last night refuting this "Tosfos" based on the
Tshuvos Maharit.

> tashbats katan etc.) ; 

Can we get a more specific cite to this one?

> sakanat nefashot on a spiritual level etc.

That's funny. I have an edition of the Jewish Observer called "Kids at
Risk" and it's almost entirely about kids in the US (except of course
for the Section - which I have not yet read - that tells people not to
expect a year in Israel to magically cure them). On what basis do you
suggest that R"L the spiritual sakanos (dangers) in Eretz Yisrael are
*greater* than those in the US? I would argue that they are the same,
and probably even less. Even if they are "only" the same, I would argue
based on the Meiri that one should live in Eretz Yisrael.

>  Sorry the vort from sefer hachayim in my previous psting was
> incorrectly mentioned on his name. I must have seen this
> elsewhere. 

When you find it, please let us know. 

> Sefer hachayim emphasizes the word "dar", implying that
> only one who makes chuts la'arets his PERMANENT residence , not
> anticipating geulah is guilty of "eyn lo eloka". 

Can we get a specific reference to this one?

[Third post submitted. Mod.]

I did promise to respond to the remaining sources cited by Yosef Braun
in Vol. 31 #82 regarding the mitzva of living in Eretz Yisrael.
Fortunately, Avi has not yet published the first two parts, so maybe he
will be able to put all three together. [Indeed I have. Mod.]

Yosef Braun writes:

> The halachot re exiting EY ; forcing one's spouse to ascend to EY
> etc. don't indicate any mitsva, for this is associated with kedushat
> and chibat ha'arets and not necessarily with yishuv ha'arets (see
> maharit vol. 2 #28; 1 #47;

I already answered the Maharit in 2:28 in a previous post. In 1:47, the
Maharit deals with a question asked by a man in Egypt who wanted to
force his wife to move to Eretz Yisrael (specifically to Azza) based
upon the famous Gemara in Ksuvos regarding how a man may force his wife
to move to Israel. The Maharit concludes that Azza is not halachically
part of Eretz Yisrael, and therefore he may not force her to move
there. He definitely does *not* say there is no mitzva to live in Israel
- exactly the opposite. The last two lines of the tshuva give us a hint
of what was really going on there.  The Maharit says that there was
nothing Jewish in Azza at that time, whereas the community in Egypt was
thriving. But he says nothing that indicates that there is no mitzva to
live in Israel.

> chatam sofer y.d. #234;

The Chasam Sofer deals with the question of giving priority to residents
of Yerushalayim in terms of giving tzedaka (in this regard, one might
also see Shulchan Aruch YD 251:3 and the Pischei Tshuva there who brings
this particular responsum of the Chasam Sofer), and deals with the
question of why Yerushalayim is considered a more important place to
live than other places in Eretz Yisrael. I believe this question was
also raised in this forum recently.

At one point he raises a hava amina (theory) that there may not be a
mitzva to live in Eretz Yisrael today, but he specifically rejects it as
going against all of the poskim.

> tashbats vol. 3 #200).

The Tashbetz apparently regards living in Eretz Yisrael as a machshir
(tool) for doing the mitzvos that can only be performed in Eretz Yisrael
(in this regard, see the Gemara in Sota 14a regarding why Moshe Rabbeinu
wanted to go to Eretz Yisrael). He raises the possibility that one may
not have to live in Eretz Yisrael to do the mitzvos, because after all,
he says, the trumos and maaseros and so on are only Rabbinical commands
today, and they were fulfilled on a Rabbinical basis in Bavel as
well. But he rejects this, because he says that the mitzva of dmai
(taking truma and maaser from doubtful produce purchased from an "am
ha'aretz" - one who is generally not strict with mitzvos) is only in
Eretz Yisrael, and that the entire matter of keeping the land based
mitzvos in Bavel was only a chumra, and not a real mitzva as it was in
Eretz Yisrael. In any event, he also holds that there are mitzvos
involved in living in Eretz Yisrael even today.

In conclusion, Yosef Braun cites some twelve sources that he alleges
support the notion that there is no mitzva to live in Eretz Yisrael
today. Of those, only one - the Megillas Esther - may actually be saying
that. Sounds like it's back to the drawing board....

-- Carl M. Sherer
Please daven and learn for a Refuah Shleima for our son, Baruch Yosef
ben Adina Batya among the sick of Israel.  Thank you very much.


End of Volume 31 Issue 97