Volume 48 Number 49
                    Produced: Thu Jun 16 20:46:01 EDT 2005

Subjects Discussed In This Issue: 

Aivah and Chametz after Pesach
         [Chana Luntz]
Public Sabbath Desecrators
         [Akiva Miller]
Ribit and Public Sabbath Desecrator
         [Josh Backon]


From: Chana Luntz <chana@...>
Date: Wed, 15 Jun 2005 22:07:06 +0100
Subject: Aivah and Chametz after Pesach

I said in one of my recent posts that I would try and say something
about the concept of "aivah" (and in particular in relation to issues of
eating bread).  In a number of places throughout shas and poskim,
certain actions that might otherwise be forbidden are allowed "mishum
aivah" - which I guess can best be translated as to prevent hatred or
bad feeling.  This would seem to be in contrast to the concept of kovod
habriyos, with the latter going more to preventing deep embarrassment
and shame.  (Aivah is more closely related to another concept, darkei
shalom, but I won't complicate matters further by trying to define a
difference between aivah and darkei shalom).

However, unlike kovod habriyos, where there is an explicit statement in
the gemora that it overrides d'rabbanans, something that is, as far as I
can tell, pretty universally held throughout subsequent poskim, it is
not so clear that preventing aivah has a similar role - and in fact the
Pri Megadim (as quoted in the Sde Chemed (marechet aleph siman 116)) is
mesupik [doubtful] on precisely this point - is aivah a general
provision that will override a d'rabbanan, or is it something only
applicable in specific cases.

In any event, the concept of avoiding aivah is referred to in the
sources in a wide range of situations between different kinds of people
- including between husband and wife and between Jew and non Jew.  But
the area I want to focus on here is the way the concept is used in
relation to what were known in the gemora as amei ha'aretz - people who
were assumed to be either ignorant or less than careful in their
observance of halacha.  In particular, an am ha'aretz was often
suspected of not being careful in relation to a) questions of tumah and
tahara [purity and impurity] and b) in terms of tithing their produce,
taking off the necessary trumos and ma'asros (although in relation to
the latter it should be stressed that the majority did in fact tithe, it
was only the minority that did not tithe).  Because of this the rabbis
enacted various gezeras [enactments] to deal with the situation.  In
particular, in relation to the problem with tithing, they enacted the
requirement that if produce was bought from an am ha'aretz, it (except
in limited circumstances) needed to be tithed again (such produce being
known as demai).

However, the danger of such enactments is that it will lead to bad
feeling and dissention (ie aivah) and Chazal were acutely aware of this.
So they also enacted that various of these enactments could be pushed
aside in certain cases of aivah.

One of the classic reference to aivah in this regard can be found in
Chaggigah 22a where, despite the fact that amei ha'aretz were suspected
of not being careful regarding matters of tumah and tahara, Rabbi Yose,
because he was concerned about aivah were prepared to accept wine and
oil from them at all to be used for the offerings in the beis hamikdash
times of the year, because of the concern that should these not be
accepted, there would be dissension and strife and the amei ha'aretz
would go off and build their own temple.

However, the key reference for our purposes is a mishna in Demai (perek
4 mishna 2), which states that, despite the fact that if one buys
produce from an am ha'aretz one is required to tithe it, and cannot eat
of it until it is tithed, if one is invited by an am ha'aretz in
circumstances in which one is unable to tithe (ie on shabbat) one can
still eat his food. The Yerushalmi on this mishna appears to clarify
this by explaining that it is referring to a wedding feast or such like
and the reason it is permitted is meshum aivah.  However the Rambam in
hilchos ma'aseh perek 12 halacha 3 appears to take the view that not
just a wedding feast falls within this category but on any shabbat (see
the comment of the nose kelim there and elsewhere) (there is also some
discussion in the Mishna and subsequent about the difference between the
first shabbat invite, (when presumably the person has no opportunity to
tithe, and a second shabbat invite) but I don't know that the ins and
outs of that add anything for our purposes).

The Beis Yosef in Yoreh Deah siman 112 brings an "Ashkenazi teshuva" in
the name of Rabbi Simcha that it is permitted to eat the bread of a non
Jew even in circumstances where non Jewish bread is forbidden
(rabbinically) if one is together with people who eat such bread with
the reason one can partake mishum aiva, - as we see from the Yerushalmi
in Demai that permits in the case of a seudas mitzvah - however he
clarifies that it is stated in that teshuva that this is only in respect
to bread - because bread is the essence of a meal [ikur hasuda] and if
everybody eats and he does not eat there will be aivah but those who
have the custom of forbidding butter of a non Jew and similar it is
forbidden for him to eat this with those who do not forbid it because
there are many in the marketplace whose souls do not desire to eat

The Rema brings this l'halacha in Yoreh Deah siman 112 si'if 15 "One who
is careful regarding the bread of non Jews and eats with others who
aren't careful, it is permitted to eat with them mishum aivah v'katita
[quarrel] since if he did not eat bread with them since it is the
essence of the meal they permitted it to him mishum aiva, but we don't
learn from here to other issurim."

The Shach explains this reference to "other issurim" as being even
butter of non Jews and similarly where the custom is to forbid even
though we are lenient in relation to this issur as we learn above in
siman 115, but it is davka with bread that there is aivah because "al
lechem chai adam" but not other foods because there are many people who
do not desire to eat butter and the like.

The Gra's comment on this siman is similar: that butter is forbidden in
this situation but that bread is different because it is the essence of
the meal and we say in perek 4 of Pesachim that even to be lenient we
change minhagim because of maklokus etc because it is not an issur
d'orisa [Torah prohibition] like the Rosh says [51b I think I have
quoted this Rosh on this list before, it relates to the importance of
not letting minhagim get in the way of darkei shalom] But in the case of
butter it is the opposite because there are many in the marketplace who
won't eat butter.

Now the Sde Chemed (marechet aleph siman 116) learns from this Beis
Yosef regarding eating the bread of non Jews that this psak proves that
there is a general principle that aivah pushes away d'rabbanans (ie he
tries to answer the doubt of the Pri Megadim), on the grounds that this
rule about non Jewish bread is to be found nowhere in the gemora, and
the Beis Yosef only learns it out from the mishna in Demai which speaks
only about the rabbinical prohibition of Demai.  So if in fact it were
true that there was no general principle then the Beis Yosef could not
learn from the rabbinical prohibition of demai to the rabbinical
prohibition of non Jewish bread.

On the other hand the Sde Chemed quotes from "haRav Zachor L'Avraham"
who appears to have been asked by somebody who was most dismayed that
certain of the gedolei yisroel of the time (including the Matne Efraim),
even though they were careful with regard to food that was
heated/reheated on shabbat in their own houses, would eat in the houses
of ordinary people [baalei battim] who reheated food on shabbat - and
the questioner appeared dismayed that since it is forbidden to eat such
food on shabbat, how could these gedolim eat at the houses of these
people on shabbat.  And while the Zachor L'Avraham wrote to calm them
down by quoting the Beis Yosef mentioned above about eating bread of non
Jews because of aivah, he holds that what the Beis Yosef is allowing is
only eating of bread (or in the case of the gedolei yisroel eating food
on shabbat) where there is a chance [chashash] that that particular food
falls into this category, because these people tend not to be careful
about these things, but not where it is known that this particular item
suffers from this defect.  And in addition he holds that this is in a
case where the guest asked the host whether this food suffered from the
defect and was told that it did not (he bases this on the fact that the
mishna in Demai referred to as the source for all this refers to the am
ha'aretz stating that it has indeed been tithed, and holds that, despite
there being no reference to this requirement to ask and be told it is OK
in the Beis Yosef or those who quote him, because it is all based on the
mishna in Demai, it cannot go further than the mishna in Demai).

And while the Sde Chemed does not agree with the Zachor L'Avraham that
this is what the Beis Yosef permitted, he brings this to show that some,
like the Zachor L'Avraham hold, vis a vis the Pri Megadim's doubt, that
in fact there is no general pushing away of d'rabbanans in circumstances
of aivah - aivah only works in cases in which there is a) doubt about
the food in question whether it is or is not rabbinically forbidden and
b) the individual in question states it is kosher, even if the
individual is not necessarily someone one would trust in this regard.

Getting back to the Shulchan Aruch, it is also noteworthy that despite
what would seem to be the Rema's blanket statement regarding not
learning out other issurim from the non Jewish bread ruling, this seems
to be taken by the meforshim not to mean, as one might have thought, a
once off rule regarding non Jewish bread, but one that is only not
extendable to other foods that are not bread because not everybody eats
them and therefore one can get away with not eating without causing

Which rather gets us to the example brought on this list which started
the whole matter off - about eating at somebody's house after pesach
where there was some doubt that the person in fact sold their chametz,
and so it was possible that the rabbinic prohibition against chametz
which was in the possession of a Jew over pesach would be violated.

Now for halacha l'ma'ase speak to your LOR (ie I hope nobody is going to
act on any of the discussions brought on this list without talking to a
competent Rav!), but as a theoretical example, this one is particularly
fascinating, as it would seem from the sources above that there might be
a distinction between bread in this category and other foods, on the
grounds that here is yet another rabbinic prohibition on bread on which
one might expect the same rules of aivah to be applied (as opposed to
cake, say, where I guess one can always say it is too fattening or
something).  Of course, if it is a question of doubt whether this food
was indeed chometz which was in Jewish possession over pesach, and the
host said it was kosher, even the Zachor L'Avraham would seem to permit
its consumption.

The other question of course is to what extent does this idea that bread
is the essence of the meal vis a vis aivah still apply when dealing with
people who may well no longer have the concept of bread being the
essence of the meal (how many non frum people today would regard bread
in that light?).  And if the scope is wider now, to what food would it

Chana Luntz


From: Akiva Miller <kennethgmiller@...>
Date: Thu, 9 Jun 2005 16:29:35 GMT
Subject: RE: Public Sabbath Desecrators

Mark Steiner asked <<< I would like to see such a controversy among the
classical sources about a MSB.  Did anybody ever hold that one could
lend money to a MSB at interest?  (I don't know the answer, but would
welcome enlightenment from the list.) (2) Here is another question: is a
MSB in the classical sources incompetent (a) to give a get?  (b) to give
halitzah? >>>

These are great questions, and I too would like to know if they've ever
been raised in the classical sources.

But I'd just like to add the possibility that the halacha might go even
further that. That is, the halacha might be that this person is not only
considered so unJewish that he is not valid to give a get, but he might
even be so unJewish that he doesn't *need* to give a get, because
halacha considers a marriage between a Jew and a nonJew invalid.

My precedent for this can be seen at
http://www.jlaw.com/Articles/maternity_appendix.html --

<<< In a recent responsum of the Tzitz Eliezer (25:26,6), Rabbi
Waldenberg claims that one who undergoes transsexual surgery assumes the
status of the sex to which he is now surgically assigned. Rabbi
Waldenberg ... states that the transsexual surgery establishes a new
person with a new sexual status. Hence, no bill of divorce is necessary
in order to sever the previous marriage.... >>>

Many other poskim disagree with Rabbi Waldenberg regarding transsexuals,
but my point is that if a Jew becomes nonJewish, there might be some
poskim who say that the spouse does not need a get.

Akiva Miller


From: <BACKON@...> (Josh Backon)
Date: Thu,  9 Jun 2005 19:00 +0300
Subject: Ribit and Public Sabbath Desecrator

Mark Steiner had inquired whether one is permitted to give a loan with
Ribit (interest) to one who publicly desecrates Shabbat.

The Teshuvot haRashba VII 179 in the name of Rabbenu Yonah indicates
that one who willfully violates the Sabbath or doesn't believe in
"divrei chazal" is a MIN and his touching wine places it in the category
of Yayin Nesech. See also the Shach in the Nekudot haKessef on YOREH
DEAH Siman 124.

With regard to Ribit: the Minchat Chinuch 343 is quite clear: "yesh
anashim resha'im, af she'hem yisrael, MUTAR l'halvot la'hen; ayen
ba'rishonim v'acharonim". Note that Rav Babad the author of the Minchat
Chinuch lived 150 years ago.

Josh Backon


End of Volume 48 Issue 49