Volume 55 Number 72
                    Produced: Mon Sep 10 21:53:43 EDT 2007


Subjects Discussed In This Issue: 

Beis Din deciding Rosh Chodesh
         [Richard Fiedler]
Da'as Torah
         [Mechy Frankel]
Halakhic reasoning vs. reward/punishment calculations (2)
         [Stu Pilichowski, Daniel Wells]


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From: Richard Fiedler <richardfiedler@...>
Date: Sun, 9 Sep 2007 18:00:29 +0300
Subject: Re: Beis Din deciding Rosh Chodesh

 From: <chips@...>

> Was the court session when the Eidym came for seeing the New Moon an
> open court, available for all to view?

This depends upon the perspective.

>From R'Yehoshua's perspective in the Gemora of Rosh HaShanah 25a court
was an open session. I am sure that most of the people thought so as
well and certainly this is the way the Jewish Calendar is taught. But
from Rabban Gamliel's perspective the whole process had been dictated by
a long tradition that Elul should be always 29 days.

The reason for this is found in the Gemora of Beitza 6a. From note 8 in
the Artscroll - "Although the Sages agreed that if witnesses ever came
after the time of the afternoon tamidon the 30th Rosh Hashanah would be
observed for two days as one extended period of holiness, their decree
was never actually instituted." Why? Says Rav Chinana bar Khana in the
name of Rav: "From the days of Ezra and onward we never found Elul to be
full."

In my opinion what happened was that the head of the calendar court
realized that the decree of the sages could create great confusion with
the observance on Yom Kippor. Before the decree if witnesses did not
testify on the day after the 29th day of Elul it would become the 30th
day of Elul and Yom Kipper would be forty days after Rosh Chodesh Elul.
But with the decree Tishrei would begin on the 30th day of Elul, with or
without witnesses, even if it was a 48 hour day and Yom Kippor would be
thirty-nine days after Rosh Chodesh Elul.

The head of the Calendar Court knew he could always find witnesses for
Elul to be established as 29 days just as Rabban Gamiel did in the
Gemora of Rosh HaShanah 25a.

But perspective is important and it is the perspective of the people
that I believe is the real source of the fact that even in Jerusalem we
keep two days of Rosh HaShanah.

 From: <ERSherer@...> (Robert Sherer)

> I thought that Rosh Hashonah was deliberately made two days after the
> 29th of Elul to obviate any reliance on witnesses who may have sighted
> the moon, but can't travel to Yerushalyim because the holiday is
> already on them Rosh Hashanah is the only holiday on the calendar that
> falls on the first day of the lunar month.

Witnesses testifying to the New Moon are engaged in a positive
commandment and thus are free to travel to Jerusalem even on Rosh
HaShanah.

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From: Mechy Frankel <michaeljfrankel@...>
Date: Fri, 07 Sep 2007 12:38:35 -0400
Subject: Re: Da'as Torah

> Here is where we depart. Da'at Torah should be what you wrote
> below. But it isn't.  It's turned into a rumour filled ex-halachic
> resource.. 
> Shoshana L.  Boublil

I imagine I wasn't sufficiently clear.  Rbtzn Boulbil thinks my
description of da'as torah as the application of an inerrant instinct
for truth mediated by grace (a rather foreign religious construct) is
what I think da'as torah "should" be. This is very far from my opinion,
which in fact I didn't express.

Rbtzn Boulbil would seem to have her own conception of what da'as torah
"should" be 

> Therefore, when dealing with the current usage of Da'at
> Torah you have to know that it always has a basis in halachah/machshava
> =Torah, and when it doesn't, and when it won't face up to the light of
> day and respond to questions -- then it is suspect.. 

Actually I don't have to know that, because it isn't true.  It is rather
a noble thought and I don't disagree very much with her sentiments of
how things "should" work.  But that is precisely not the "current usage"
she claims, nor for that matter is it the historical usage of the phrase
either .  It seems clear to me that Rbtzn Boulbil has an attachment to
the phrase "da'as torah" and wishes to preserve the matbei'oh halloshon
from those who might corrupt it, but unlike the red queen you can't make
up your own meanings for words (well you can, but you shouldn't expect
anybody will then recognize them), and that's simply not how it's used.

I should like to turn to her example of the rov who ostensibly used
da'as torah to determine the milk was watered and saved the poor woman's
soup.  I believe this is a misleading example of the same.  Ultimately
this rov made a simple p'soq with a clear audit trail to the appropriate
legal source material of bittul when the foreign material is only a
fractional component.  i.e. he did pasqen directly from a book.  But he
was also responsible enough to perform due diligence in being m'varer
the facts.  A better example of the real workings of "da'as torah" is
not the rov who pasqened botel b'shishim (even if he didn't share the
reasoning with the pot lady), but rather what you've seen played out in
the Slifkin affair.  And contrary to Rbtzb Boulbil's wishes, that
refusal to halakhically deduce matters from source texts in the normal
halakhic give and take is restricted to those who are not "true"
G'dolim, the promulgators are neither anonymous nor lack "gadlus". I
mean, who is going to consider R. Elyashiv and some of the other signers
of the "da'as torah" expressions who will not "explain" their decisions
not to be a true gadol.

Another recognizable feature that may distinguish a "da'as torah"
decision is its promulgation in the absence of a shailoh being asked of
them by a nogeioh baddovor and aimed at an audience that may be far from
the "da'as torah" decisor's acknowledged sphere of influence.  While I
can't quite remember if this facet is discussed in kaplan's article, the
late great Jacob Katz z"l has pointed to the conclave of Hungarian
rabbonim in Mikhhailovich in the later 1800s who got together and issued
a whole series of proclamations against various religious innovations
(not talking throwing out the siddur and mixed seating here. rather
things like having bimoh in center, getting married in shuls, and, r"l,
choirshules, i.e. the gamut of Hungarian yeihoreig v'al ya'avors. I
think they got one of my great great grandfathers ^ a name to be
reckoned with in Hungarian charedi (but that is a tautology) circles,
and considering me, another instance of hisdard'rus haddoros - to
sign-off later on.  They wanted 72 signatures so they could represent
themselves as bais din of synhedronic scale authority).  I don't think
either the participants or Katz called this "da'as torah"( a term which
was not in any common usage at this time, if at any time) but certainly
that's exactly what it was in the modern usage.

Mechy Frankel
<michael.frankel@...>
<michaeljfrankel@...>

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From: Stu Pilichowski <cshmuel@...>
Date: Sun, 09 Sep 2007 14:23:08 +0000
Subject: Re: Halakhic reasoning vs. reward/punishment calculations

From: Shimon Lebowitz <shimonl@...>
Date: Thu, 06 Sep 2007 18:48:30 +0300
Subject: Re: Halakhic reasoning vs. reward/punishment calculations

>>The opinion Daniel expresses appears to be part of the minority
>>opinion that opposes Kiruv (outreach to the non observant) in general.
>>Don't run a Turn Friday Night in Shabbat because people will drive
>>home afterwards.

>I don't know about kiruv programs, but when personally confronted with
>this situation I had a definite problem.
>
>I wanted to invite a family of non-observant Jews to my Shabbat table,
>but they were staying at a hotel a considerable distance from where I
>live (about an hour's walk). I could not bring myself to extend the
>invitation as long as I knew they would be driving back (actually they
>were going to take a taxi, just like the way they arrived).
>
>I discussed it with them, and expressed my sincere desire to invite
>them, on the condition that we all walk together back to the hotel.
>They agreed, they came by taxi, and my wife and I had a 2-2.5 hour walk
>friday night, to their hotel and back.
>
>Just my own feelings,
>Shimon

I thought this question was asked and answered by poskim years and years
ago as kiruv became more popular and "turn Friday night into Shabbat"
programs became more plentiful. If you offer a place for your guests to
stay overnight, you, the host, have fulfilled your obligation and need
not worry anymore, i.e. you have done yours.

Why be "frumer" than the poskim?

By being frumer and being more machmir than the poskim aren't you
thereby "insulting" or "attacking" the credibility of the poskim? Aren't
you also taking away from possible kiruv opportunities?

Stuart Pilichowski
Mevaseret Zion, Israel

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From: Daniel Wells <wells@...>
Date: Sun, 9 Sep 2007 14:33:11 +0300
Subject: Re: Halakhic reasoning vs. reward/punishment calculations

> Eh?  I was always taught that there are, as per the Mishna in
> Kiddushin, *three* ways that a man can be mekadesh a woman, kesef,
> shtar and biah [money, document or relations], not that the other two
> need biah as well.  You seem to be suggesting that without biah there
> is no kiyum of the kiddushin - which would seem to mean that if
> somebody else where to have relations with her they would be patur
> from being mekadesh an eishis ish.  Rather I think you will find that
> kiddushin is kiddushin whether or not they have biah hours, weeks or
> months after that kiddushin.

What I was suggesting is that in the case of chuppas nidda, yichud is
forbidden and they have to sleep in separate rooms. After the initial
biah, yichud is permitted even if she is niddah.

> Firstly, my guestimate of the time between introduction (which is the
> key matter we are discussing) and kiddushin in the case of a pair of
> nonreligious is probably in the vicinity of two years.

Two years or two minutes, whats the difference? The person who created
that illicit relationship bears the responsibility.

> Secondly, as mentioned, the kiddushin and the first biah may well be
> hours, days or months apart, you just don't know.  Particularly if
> your non frum couple, does not, as frum couples do, hang around for
> sheva brochas, but catches the evening flight out to that beach
> resort, then the chances of the first swim preceeding the first biah
> might be quite high.

As the RaMBaM wrote even if all the seas of the world would cover her, if
she has not cleansed herself as required, she remains tameh

> Far more unlikely than that somehow, intentionally or unintentionally,
> the woman has been in a kosher mikvah.  But we never give up hope of
> teshuva (and, I think the sources will all say, neither does Hashem,
> so in that regard it is imitatio dei).

Whether a woman is tameh or not is surely not dependendant on whether
she has or will do teshuva or that she might have by accident fallen
into a mikveh.

>> As far as sometime later "that she might go swimming unintentionally
>> in a vadai mikvah, such as the sea)" is a not a consideration since
>> its highly unlikely there will not be a hatzizah between her body and
>> the sea.

> I see you disagree with Rav Moshe.

****quote from the internet****

Rav Moshe Feinstein: In many cases we can't be certain the mother was
truly a niddah mide'oraita, because maybe she went swimming after her
period in a body of water that qualifies as a mikvah, and thereby became
tehorah. (Rav Moshe does not discuss the fact that she would most likely
have been wearing a tight-fitting bathing suit at the time.)

******end of quote***

>> Would you be prepared to introduce an unemployed known ganav
>> to the manager of the bank because he may just do teshuva?
> There are specific haalchic issues mandating disclosure.  I don't see
> any problem in introducing such a person to the manager of the bank so
> long as I also told him that he was a known ganav.  At that point it
> is up to the bank manager to decide whether to give him a chance or
> not (which, if he does, I suspect will involve some hard talking).
> Not telling the bank manager is clearly an issur.

My point was that if the ganav is unrepentant there is no way he should
be suggested for work in a bank because there is a real opportunity to
do an aveira

So here an unrepentant secular should not be suggested as shidduch as
also here there is a real opportunity to do an aveira.

> Leaving aside any question of marriage being a mitzvah, the issue of
> at what point one is forbidden to aid a person to do an aveira is a
> halachic topic dealt with under the rubric of lifnei iver.  It is
> dealt with extensively in the halachic literature.  You seem to be
> extending that issur well beyond its normal halachic definition.

Perhaps you can explain why I have been "extending that issur well
beyond its normal halachic definition"?

It appears very simple.

If Mr X suggests that Joe and Jane should get married knowing full well
that they have no current intentions of observing the purity laws, then
surely he will be held accountable for each illicit cohabitation
throughout their married life.

>> Also its not the mesader kiddushin's job to check if they are shomer
>> shabbat, its not his job to check if they will keep the purity laws.

> Why, according the the classic definitions of one side and two sides
> of a river, is his position any different from that of an introducer?

Quite definitely. The Measader Kedushin only takes care of the
legalities of the marriage ceremony even if it will be a chuppas
nidda. Its not his responsibility to check future intentions.

>> However I have heard it reliably said that if yid is a complete tinok
>> shenishba and does even know that he is jewish, then it may be better
>> that he marries a goy and let his descendents become goyim, rather
>> than inform him and thus make him culpable for his aveiros. Obviously
>> this a case where there is little hope that he will do teshuva.

> Would you say that it should be different if the tinok shenishba is in
> fact a tinoket ie a woman?

Yes, following the same reasoning. And perhaps the woman is also less
culpable since it is he that forces himself on her and not the otherway
around.

Daniel

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End of Volume 55 Issue 72