Volume 37 Number 48
                 Produced: Tue Oct 22  6:40:31 US/Eastern 2002

Subjects Discussed In This Issue: 

Hallachic legal fictions
         [Chaim Mateh]
Hamar Medina (2)
         [David Ziants, David & Judith Weil]
kiddush customs
         [Zev Sero]
Lashon Harah
Legal Fiction
Legal Fictions
         [Zev Sero]
Maimionides Attitude Towards Sacrifices
         [Yisrael and Batya Medad]
Pregnant Eshet Kohen at a Beit Kevarot
         [Russell J Hendel]
Question on Rav Shach, z"l
         [Leona Kroll]
Women and cemeteries
         [Shmuel Himelstein]
Yomim Noraim Piyutim; Bo'ee v'sholom
         [David Wolf]


From: <chips@...>
Date: Fri, 18 Oct 2002 16:48:43 -0700
Subject: Re: Dateline

It is my understanding that Lubavitch travelling to Australia from USA
(example) during Sefirah and stay in Australia untill after Shavous,
actually keep the days of Shavous a bit differently.



From: Chaim Mateh <chaim-m@...>
Date: Sun, 20 Oct 2002 11:37:28 +0200
Subject: Hallachic legal fictions

In v37 #39, Nachman Yaakov Ziskind <awacs@...> wrote:

<<But the delivery of debts to the court, from a practical point of view,
changes nothing: same person paying the debt, same person receiving the
money. From a legal point of view, however, everything changes. That's why
it's a legal fiction.
Oh? How many times have you delivered on your Chametz contract? Do you
expect to EVER deliver? I didn't think so.   But, legally, the sale makes
all the difference in the world. That's why it's a legal fiction.>>

Perhaps we should decide what a legal fiction is.  To my layman's mind,
a legal fiction is exactly that: a fiction (something that does not
happen) that has the legal force of as if it did happen.

An example of such a thing was in the daf yomi about a week ago.  In
Sanhedrin 33a the Gemoro discusses when a judge is held liable for a
mistake he makes in judgement.  One of the possibilities discussed is
when the judge actually takes the money from one litigant and
(incorrerctly) gives it to the other litigant.  The Gemoro asks what
about if the judge is mezakeh (judges to be nonliabel) the chayov (the
liabel party).  IOW, the judge rules that Reuven does _not_ have to pay
Shimon, and the judge's error is that Reuven _should_ pay Shimon.  In
this case, the judge (and in fact, noone) did not take the money from
one litigant and give it to the other litigant.  The Gemoro answers (5
lines from the bottom of the page) that "since [the judge] said [to the
guilty party] that you are exempt [from paying], it is as if he [the
judge], with his hand, took the money [from one litigant] and gave it
[to the other litigant]."

In the above case, the "taking and giving" of the money did not happen
at all.  This is the fiction.  However, the Gemoro gives it legal force,
as if it _did_ happen.

OTOH, in the Pruzbul and Chometz selling, the actions actually _did_
happen.  In the Pruzbul case, the lender did in fact give over his loans
to a Beis Din for collection .  In the Chometz case, the person did in
fact legally sell his Chometz.  There is absolutely no fiction here.  It
makes absolutely no difference that the goy never came (or even never
will come) to pay for the chometz and take it.  The sale actually took
place and was legal.  Same with the Pruzbul; it doesn't matter that the
end result is the same; the loan was legally given over to a Beis Din.
No legal fictions in these cases, but actual actions that are legally

Kol Tuv,


From: David Ziants <dziants@...>
Date: Sun, 20 Oct 2002 08:49:03 +0200
Subject: Re: Hamar Medina

I clarified with Rav Katz: It is both sugar and milk that add importance
(and not just milk as I might have implied in my note).

David Ziants
Ma'aleh Adumim, Israel

David Ziants <dziants@...> originally wrote:
> As a continuation of the thread on orange juice and havdala, I want to
> try and summarize an article that HaRav Yehoshua Ka"tz (ashkenazi chief
> ........ 
> (3) Coffee ("botz" [= Turkish (I assume -DZ)] and instant) with sugar
> and milk (emphasis on "sugar and milk" - I assume that milk adds
> importance) are called hamar medina.
> ........

From: David & Judith Weil <weildj@...>
Date: Sun, 20 Oct 2002 06:13:01 +0200
Subject: Re: Hamar Medina

I refer to the statement that:

> (5) Black coffee and and sweet tea should only be considered hamar
> medina in an emergency and there is no other choice, as there are
> sources to rely on this (eg Aruch HaShulchan). Coffee is better than tea

When I grew up in England tea - with milk - was considered preferable to
coffee as the national drink, because it is indeed the national drink

I nevertheless always wondered about tea on Shabbos, because
halachically it was impossible to make tea on Shabbos the way it should
be done, and tea (English tea, with milk) made on Shabbos was always
extremely inferior to tea made during the week.



From: Zev Sero <zev.sero@...>
Date: Fri, 18 Oct 2002 13:02:03 -0400
Subject: Re: kiddush customs

Ira Grinberg <ira.grinberg@...> wrote:

> I have seen two different customs regarding kiddush[...]
> In the second, the ba'al habayit also makes kiddush on behalf of all
> present, but first he pours some wine (grape juice) into the guests
> cups from the bottle(s).

This method has a clear basis in Pesachim 106a.  It also has the
advantage that the listeners do not experience a delay between the
bracha and drinking.  It's also what (I believe) everybody does at the
Seder.  That it's also more hygenic can't hurt.

I don't know the basis of the more common method.

Zev Sero


From: <CARLSINGER@...>
Date: Fri, 18 Oct 2002 07:37:45 EDT
Subject: Re: Lashon Harah

      Is it forbidden to talk about another person's negative qualities
      to a trusted colleague for a constructive purpose, such as
      learning how to deal with that person better, or is that lashon

There have been interesting discussions re: loshen horah and Shidduchim
-- matchmaking.


From: <HLSesq@...>
Date: Fri, 18 Oct 2002 12:06:50 EDT
Subject: Re: Legal Fiction

The fact that ultimately a creditor gets paid under a prozbul or that
you never really think you have to deliver chametz pursuant to your
shtar mechira does not make these things "legal fictions" . The legal
reality in both of them is that the mechanism chosen will legally
operate in accordance with its terms. That is, you have in fact
transferred the debt to bes din, and you may in fact be required to
deliver your chametz. A legal fiction says something is true that is
not, for pruposes of conforming to a certain rule of law, for example,
saying in a release that it is in consideration for $10 in lawful money
of the United States this day paid, or the "fertile octagenarian rule in
perpetuties. The classic on this is Lon Fuller's "Legal Fictions". To me
this is beside the point of the issue, which is that the Conservative
view of Prozbul is, as I understand it, not that existing halachic
principles were used to create the takkana (ie , that the existing
halacha in fact was that debts of the court were collectible after
shmitta)but rather that the whole idea sprang from the rabbis' heads,
who "invented" the rule to save what they viewed as the more important
social policy of lending to the needy. We might see this type of
reasoning again as a justification for sanctioning homosexual marriage
or sanctification of nonmarital relationships, which seems to come under
discussion at Rabbinical Assembly conventions(Ie, its socially more
important to ensure Jewish continuity or family values regardless of how
the family unit is made up than it is to exclude such relationships from
kedusha altogether) . I have always felt that Eis Lassos (halachically
exigent circumstances) could be used in some situations, as it was to
justify lifting the ban on writing down Torah she b'al peh. But alas, no
sanhedrin.......no universally accepted moetzes gdolim. Any takers on
the theoretical limits of Eis Laasos here?


From: Zev Sero <zev.sero@...>
Date: Fri, 18 Oct 2002 13:22:29 -0400
Subject: Legal Fictions

Nachman Yaakov Ziskind <awacs@...> wrote:
> Shmuel Himelstein <himels@...> wrote:
>> Along the same lines, the sale of Chametz prior to Pesach is not
>> meant to be a legal fiction at all, and the Jew selling it must be
>> willing to deliver all the Chametz to the non-Jew who bought it if
>> the non-Jew pays the market value of the Chametz.
> Oh? How many times have you delivered on your Chametz contract? Do
> you expect to EVER deliver? I didn't think so.

Well, I never expect to deliver to the goy who bought it himself,
because he obviously has no personal use for such a quantity of chametz,
and is buying it for resale, expecting to turn it around quickly and
realise a profit.  The farmer who forward sells his crop to a futures
speculator doesn't expect to deliver to that person either, because he
knows that by the time he's ready to deliver, the contract will have
changed hands many times, and will end up in the hands of someone who
actually wants the crops.

Since the goy has one sure customer (i.e. me), who is willing to buy the
stuff immediately after Pesach, and give him a small but guaranteed
profit, I imagine that he doesn't spend much time looking for a higher
bidder.  Especially since this higher bidder would have to incur
transaction costs that I won't have to pay (hiring a truck to pick the
stuff up, warehouse space to store it, and an assessor to value it), so
they would have to want it much more than I do.  But there's always the
possibility.  In the case of a private household such as mine it's
unlikely (because what other buyer realy wants to drive around to
hundreds of addresses picking up half-empty boxes of cereal?), but in
the case of a business it's a real possiblity, and of course if it
happened the seller would be delighted to unload all his stock at once.

The point is that it's a serious sale, not a fiction.  And when I buy it
back, that's a serious sale too.  And if the price of weetbix suddenly
goes up over Pesach, I might have to pay rather more that I expected to
get it back, or he might actually find another buyer!

Zev Sero


From: Yisrael and Batya Medad <ybmedad@...>
Date: Sun, 20 Oct 2002 13:05:06 +0200
Subject: Re: Maimionides Attitude Towards Sacrifices

As a long- time vegetarian, I don't see how anyone who eats meat can
object to animal sacrifices.  The meat is eaten afterwards, just like
any seudat mitzvah, if I'm not mistaken.  The animal isn't wasted, just
ritually barbecued.



From: Russell J Hendel <rjhendel@...>
Date: Sun, 13 Oct 2002 17:05:09 -0400
Subject: Pregnant Eshet Kohen at a Beit Kevarot

Rabbi Aryeh Frimer asks in v35n33
>>What's the status of a pregnant Eshet Kohen at a beit kevarot,
especially now where the gender of the Fetus can be ascertained?<<

Clearly, the fetus must immediately induce pregnancy and crawl away from
the cemetery. The angel making the fetus forgetting all his learning is
not allowed to make him forget till he is outside the cemetery(So he
will know to leave)

(For the unitiated the above was a joke). The simple real answer is that
Jewish law regards the fetus as a limb of the mother.  The fetus does
not have an independent status (Till it is born). Consequently the fact
that it WILL one day be male is irrelevant--the fetus is CURRENTLY
simply a limb of the women; Both she (and her fetus) can stay on the

Russell Jay Hendel; http://www.RashiYomi.com/


From: Leona Kroll <leona_kroll@...>
Date: Sun, 20 Oct 2002 00:12:30 -0700 (PDT)
Subject: Question on Rav Shach, z"l

Did Rav Shach ever actually state that it was permissible to attack Jews
who are not Shomer Shabbos?  Did he once say that frum Jews must fight
against those who do not follow Torah- and if so, what was the context
and what did he really mean by 'fight'?  I ask b/c some of his followers
seem to think he advocated beating non-Shomer Shabbos Jews and/or
throwing things at them , and i have a hard time believing a man so
steeped in Torah would say such things.

I am not planning on confronting anyone, any info provided will strictly
be for my own peace of mind.  Thanks.


From: Shmuel Himelstein <shmuelh@...>
Date: Sun, 20 Oct 2002 09:03:50 +0200
Subject: Women and cemeteries

It is interesting to me, as a Kohen, that among Syrian Jews unmarried
daughters of Kohanim do not enter cemeteries. I assume the basis of that
would be that unmarried daughters of Kohanim are in theory permitted to
eat Terumah.

Along the same logic, though, the wives of Kohanim should also be
forbidden to enter cemeteries, as they, too, are permitted to eat

I wonder if that is indeed the case.

Shmuel Himelstein


From: David Wolf <david.wolf@...>
Date: Sat, 19 Oct 2002 22:51:16 -0400
Subject: Yomim Noraim Piyutim; Bo'ee v'sholom

I think that both Birnbaum and Artscroll mention the fact that the
Piyutim are designed for AB AB AB... recitation but that the custom has
developed that they're said almost universally in the against-pshat mode
of A BA BA BA B.  It's too bad, but nobody is willing to say "STOP!
Let's fix it!"   Did you ever wonder, too, why people turn around for
Bo'ee v'Sholom in L'cho Dodi when there's no door in the back of the
shul?  After all, Shabbos really comes from the east in this country,
not from the west to which people turn if the Aron is on the east wall
of the shul.  Makes no sense, but it all started for some good reason, I
suppose.  DW 


End of Volume 37 Issue 48