Volume 37 Number 69
                 Produced: Wed Nov  6  5:27:56 US/Eastern 2002

Subjects Discussed In This Issue: 

         [Allen Gerstl]
Legal Fiction
         [Akiva Miller]
Marit Eiyin
         [Frank Silbermann]
Marit Eyin
         [Carl Singer]
Pruzbul as legal fiction?
         [Ira L. Jacobson]
Question re Lashon Hara
         [Stephen Phillips]
Rav Shach's comments
         [David Farkas]


From: Allen Gerstl <acgerstl@...>
Date: Wed, 30 Oct 2002 07:36:17 -0500
Subject: Re: Devarim

Joshua Hosseinof <jh@...> wrote
>                           ...
>...it is undeniable however that there was widespread
>ignorance as to what was written in the Torah, as evidenced by >Nechemiah 
>8:10-12, and 8:17 which was the point I had been trying to >make regarding 
>the high level of intermarriage of Jews during the time >of Ezra.

Yes, either ignorance or non-observance was apparently widely found
after the cataclysmic events of the destruction of the first temple, the
Babylonian exile and the social disruption that occurred.

I recall when taking a course in Biblical Aramaic that we studied the
Elephantine Papyri (documents found in Egypt at the end of the 19th c
and early 20th c and dating from the time of the time of Nechemiah when
the early Persian Empire ruled Egypt and the official imperial language
was Aramaic. At that time (late 5th c. B.C.E.) there were imperial
soldiers garrisoned in Egypt and among those soldiers were Jewish boys
who were we may assume, were ignorant of Halacha, not particularly
observant, afraid to observe or not allowed to observe Halacha. In one
of those documents, which we were told was an official army command, the
Jewish soliders were required to observe the upcoming Passover and told
basic halachot that they may then neither eat nor possess chametz and
must not do forbidden work.  IIRC, the editor of a book I used in the
course stated that the document was probably sent at the request of
Nechemiah and his circle.



From: <kennethgmiller@...> (Akiva Miller)
Date: Wed, 30 Oct 2002 09:02:56 -0500
Subject: Re: Legal Fiction

I appreciate the efforts of several posters who have tried to correct my
misunderstandings of how Prozbol works. I had thought that part of the
process is that the debt becomes owed to the Beis Din, and it seems that
I am wrong on that point, but I'm still trying to understand the

It is important to remember that the law of Shemitta is *not* that a
debt ceases to exist, but that the lender must not ask to be repaid in
certain problematic manners. (I'm being vague because the words of the
Torah are difficult for me to translate. See Devarim 15:2-3 and

Chaim Tabasky wrote <<< After shmitta it is forbidden to lay claim to
unpaid debts. However if the debts have been seized in some form, such
as through collateral, or a document with a lien on property, even if
the debt has not been paid it is not cancelled because the creditor
already is in possesion of a legal claim, and we say it is as if the
debt is paid. >>>

Now, there are two different cases here: collateral and lien. Let's take
them one at a time.

If the borrower gave a collateral to the lender, the lender can ask to
be repaid, because this is not the predatory sort of claim which the
Torah prohibits. The borrower can simply forfeit the collateral, or we
can view it not as a "request to pay the loan" but as an "offer to
redeem the collateral". Either way, Shmita doesn't apply.

But if <<< the creditor already is in possesion of a legal claim >>> why
would we say <<< it is as if the debt is paid? >>> Isn't *every* loan a
legal claim?

J B Gross explains this same point, but a bit differently: <<< "Hamoser
Shtarosav L'veis Din" means *filing* suit for collection on the basis of
the notes (not *donating* the loan notes to the court).  Since the shtar
is irrefutable proof of the debt, the creditor is deemed to be
collecting on a Judgment, rather than pusuing a creditor, from that
point on. >>>

Okay, I understand that debts come in various kinds. If someone sued me
and I lost the case, then the court has issued a judgement against me,
and I owe him the money. But the debt is not the result of a loan, and
therefore shemitta will not cancel it.

So it sounds to me like the point that Chaim Tabasky and JB Gross are
making, is that if one informs Beis Din about the loan, that gives the
loan a greater enforcability, so much so that the loan becomes one which
shemittah does not cancel. My question is how this works. A loan is a
loan, whether it is in writing or not, and whether beis din knows about
it or not. If the lender informs the court about this loan, and the
court issues a judgment that "Yes, this loan looks like a real debt",
why does it suddenly become permissible for the lender to bother the
borrower about repaying? (This is why my original post presumed that the
loan is actually owed to the court, because *that* would now be a
Judgement, but I don't see how it works otherwise.)

Akiva Miller


From: Frank Silbermann <fs@...>
Date: Wed, 30 Oct 2002 08:19:57 -0600 (CST)
Subject: Re: Marit Eiyin

If one worries about Marit Eiyin due to wearing a yarmulka while
drinking a soft drink and refraining from eating during a business
meeting in nonkosher restaurant, why not simply wear a yarmulkah that is
relatively inconspicuous?

I know that it seems to be the fashion to wear bigger and bigger
yarmulkas these days, but why not wear one that is small, dull, and
which matches one's hair color?

Someone who is close enough to notice such a yarmulka is also close
enough to see that you are not eating, and close enough to ask you about
the kashrut of the restaurant.

Frank Silbermann
New Orleans, Louisiana


From: <CARLSINGER@...> (Carl Singer)
Date: Wed, 30 Oct 2002 07:10:28 EST
Subject: Re: Marit Eyin

      I have had business meetings in treif restaurants for about 10
      years, and it doesn't get any less strange.  However, I always try
      to either wear a hat in establishments where its acceptable, and
      if not have some way of identifying that its a business meeting -
      usually wearing my work ID or being in a business suit with others
      dressed the same way.  Also, the people I am 'eating' with will
      realize that I am not eating, or that I am eating food I brought
      with me so they will not presume the kashrut of the restaurant.

Many years ago I was on a 3 week tour of the Telephone company
operations in the South.  My hosts, Bell South, saw to it that I got
catered kosher meals (they were most excellent hosts) -- but as a group
we ate in obviously traif restaurants.  Whether the wrappings on the "TV
dinners" or the Styrofoam containers some of the meals came in -- where
possible I kept these visible at the table while eating.  The issue may
extend beyond the people you are eating with, but to include other
people in the restaurant.  I don't know if it falls into Marat Eiyen,
but one still wouldn't want a non-Jew to think that a Jew with a
Yarmulke is eating traif when they're on the road.

Quick addendum for those of you who have spent your whole life in New
York, etc.  I was teaching a course these past two days.  One of my
students, a mid-20's woman from the Carolinas, and I were having a
conversation during one of the breaks -- and despite the fact that I
wear a yarmulke at work, she asked me, in all sincerity "Are you
Jewish?"  -- Lots of educated / sophisticated people in lots of places
have no idea.  Don't take things for granted.

Kol Tov



From: Ira L. Jacobson <laser@...>
Date: Wed, 30 Oct 2002 14:36:50 +0200
Subject: Re: Pruzbul as legal fiction?

>I personally know of at least one Jew who
>believes it is too lenient a kula to get around "chametz sheavar alav
>hapesach" and actually gets rid os all his chametz prior to pesach.

I wonder how it is possible to get rid of the hametz balu`a, absorbed in
the dishes, pots and pans and so forth without selling the hametz.  If
one does not get rid of these, then he has not solved the problem of
owning hametz on Pessah, it seems to me.  Can anyone comment?

>| 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.
>But, legally, the sale makes all the difference in the world. That's why
>it's a legal fiction.

Our LORs remind us every year that one must regard the hametz contract
as legally binding in order to have it considered that we did not own
hametz on Pessah.

In fact, one LOR uses that as a test for whether or not he will act as
the agent of a local grocery store.  His question to the proprietor is
something like, "If the gentile shows up and asks to take away the
hametz, would you let him do so?"

If the grocer answers that he regards the transaction as a legal
fiction, the rabbi will not act as his agent to sell the hametz.



From: Stephen Phillips <stephenp@...>
Date: Wed, 30 Oct 2002 14:10 +0000 (GMT)
Subject: Re: Question re Lashon Hara

> From: Shmuel Himelstein <himels@...>
> This weekend's Ha'aretz carried a story about a certain Israeli Rav who
> was indicted for Kashrut fraud, along with the company whose Hechsher he
> gave. The case has not yet come up for trial. My question is whether one
> is permitted to relay such limited information to anyone else, or 
> whether this is considered Lashon Hara.

I'm sure it would be considered Lashon Hara, but it may be permitted LH.
There are several conditions laid down before one may (and, in many
cases, is obliged) speak LH. One should check the Sefer Chofetz Chayim
or the English version "Guard Your Tongue" for these conditions.

AFAICR, some of the conditions are as follows:

1. One may not believe the LH as told to you.

2. You can only tell it to someone who needs to know (e.g., in this
case, someone who normally relies on that particular Hechsher), and then
only to warn them to be careful, rather than to tell them it is actually

3. One must not embellish or exaggerate the LH one iota.

4. One must be telling the LH for a positive practical purpose, and
never if one has an axe to grind with the subject of the LH.

Stephen Phillips.


From: David Farkas <DavidF@...>
Date: Wed, 30 Oct 2002 09:55:16 -0500
Subject: Rav Shach's comments

    I too agree with Reb Chaim [Mateh] that when seeking to verify the
veracity of alleged public statements, one must first prove that X did
say something, rather than X trying to prove that he didn't. I also agree
that the questioner raised the question in an appropriate manner, rather
than in the vulgar accusatory tone favored by others.
    But I do wish to raise the point that it is possible for an issue to
be condoned tacitly as opposed to explicitly. I'm not suggesting that Rav
Shach or anyone else for that matter did give tacit approval for the
rioting and the stone throwing - I have no idea. But it seems to me that
some people of influence in the Yerushalmi communities ( and that
includes people that most readers of MJ, I would venture, have never
heard of) must be giving it some form of tacit approval, else these
activities would not have lasted so long. And I for one am not convinced
that such quiet, tacit approval is a bad thing.
    Its fashionable to criticize the rock throwers, and certain orthodox
groups here in the US compete with other Jewish groups, stumbling over
themselves in the race to condemn the Charedim first. But lets not forget
that by throwing rocks and showing strength, the Charedim are standing
tough on an issue that they cannot afford to be genteel about. Their
strength and supposed "wildness" keeps outsiders from ruining their
community, and that's exactly the way they like it. Compare it to what
happens in the States, where we, Jew and non-Jew, are "above" such
behavior. When undesirable elements move into our communities, we pick up
and leave. White Flight. Gentile Flight. Whatever you call it, it is the
departing people who are forced to leave the communities they put their
lives into building.
    Well, the Charedim don't want to leave, and neither should they have
to either. They were in Meah Shearim well before many of the
non-religious Israelis were in the country, and those Israelis who wish
to drive on Shabbos have plenty of space to do so elsewhere. ( Like we
always say about the Arabs, right? There's dozens of enormous Arab
countries out there, why cant they just let us live in peace in this one
tiny corner of the world?). Let us not forget that once disputes get to
the courts, the Israeli Judicial establishment has time and again, with
only limited exception, ruled in favor of the non Orthodox side. It is
the only the Charedim's united show of strength and defiance, therefore,
which keeps the Judiciary and Police from forcefully allowing traffic
right down the middle of Kikar Shabbos. Anyone who's been there has to
admit - its a lot nicer walking there on Shabbos than it is on Rechov
Ramban in Rechavia, where sometimes you can hardly tell its Shabbos.  (
The fact that we in America have grown used to such things is irrelevant.
We are talking about Jerusalem, not Cleveland or wherever).
    I'm not advocating that American Jews join in the fray, and I of
course realize that there are competing factors that speak against the
riots. But we should also be aware that the issue is not one sided, and
if perhaps we should not publicly applaud it, we should not publicly
condemn it either.
Zai gezunt,
David Farkas


End of Volume 37 Issue 69