Volume 58 Number 26 
      Produced: Mon, 07 Jun 2010 23:31:58 EDT

Subjects Discussed In This Issue:

"magical" influences on halacha (2)
    [Harlan Braude  Russell J Hendel]
be fruitful and multiply 
    [Ari Trachtenberg]
fences do not always make good neighbors (2)
    [Russell J Hendel  Alex Heppenheimer]
halachicly correct dress for women  
    [Stuart Pilichowski]
hidur mitzva [was: tefillin bag] 
    [Perry Zamek]
marriage and separation (2)
    [Martin Stern  Russell J Hendel]
modesty and separation of the sexes 
    [David Tzohar]
zeitgeist and halacha 
    [David Tzohar]


From: Harlan Braude <hbraude@...>
Date: Wed, Jun 2,2010 at 05:01 PM
Subject: "magical" influences on halacha

In MJ Vol.58 #22 Digest, David Tzohar wrote:
> Yisrael Meidad and Joel Rich both wrote about influences like the full 
> moon on halachic subjects. We have to remember that Chazal, and indeed Jewish
> tradition in general takes for granted the fact that there is another
> spiritual dimension in the world that is beyond the realm of our senses.
> [...]
> Chai and Rav Mordechai Eliyahu. On the other hand the Mishna Brura and Rav
> Ovadia Yosef rarely take into consideration things that are outside the
> rationalist tradition(spiritual father Rambam) in their rulings.

I hope this isn't taken the wrong way, but some things we take for granted 
as fact today might have been viewed centuries ago as "beyond the realm of our 
senses". A non-halachic example involving the moon that comes to mind is the 
influence of lunar gravitational forces on ocean tides.

The point is that the boundaries of the physical and the metaphysical aren't 
clearly defined, so how does one determine which approach applies?

From: Russell J Hendel <rjhendel@...>
Date: Wed, Jun 2,2010 at 08:01 PM
Subject: "magical" influences on halacha

David Tzohar in v58n22 writes >>We have to remember that Chazal, and indeed
Jewish tradition in general takes for granted the fact that there is another
spiritual dimension in the world that is beyond the realm of our senses. there
are certain otot and simanim (signs and portents) which can make us more aware
of that other world and enable us to act accordingly.>>

I have heard what David said. But to the best of my knowledge and belief SUCH AN
ATTITUDE is a violation of the Biblical prohibition of divination (Nichush). You
 are prohibited to say/act >>A black cat crossed my path; therefore I will not
go out today; my loaf of bread dropped; therefore today is a bad day for
business deals.>>

My understanding is that we are REQUIRED to base our actions on scientific,
rational, and/or common sense criteria. The belief that reality communicates
symbolically is prohibited. I don't see this as a "view of Rambam"; I see this
as a biblical requirement.

As for the other world? We are required to believe in prophetic communication
from God to man through dreams and prophetic visions. But that is a far cry from
seeing "black cats" as signs from heaven.

I don't see how anyone can hold what David says unless they properly respond and
explain what the biblical prohibitions mean.

Russell Jay Hendel; Ph.d. A.S.A. http://www.Rashiyomi.com


From: Ari Trachtenberg <trachten@...>
Date: Thu, Jun 3,2010 at 06:01 PM
Subject: be fruitful and multiply

The discussion about about the definition of marriage brought up a long-standing
halachic conflict that I have been unable to properly understand.

My understanding is that the mitzvah of "be fruitful and multiply" applies only
to men in the tradition, in that women are not obligated to marry and have
children. On the other hand, it is the wife in a marriage who has final halachic
control over having children, whether and when.

So, what happens if a husband has not fulfilled his Torah responsibility but his
wife has definitively ruled out more children (let me preempt by stating that
this is *not* a question from personal experience :-).

Does the man have an obligation to divorce his wife and remarry a woman who might
be willing to give him more children?  It would seem to me quite clear that this
issue does *not* apply to people facing infertility problems, given the weight
precedents from our matriarchs to the last Lubavitcher Rebbe z"l, but I would
hope that any further discussion on that point would be appropriately sensitive



From: Russell J Hendel <rjhendel@...>
Date: Wed, Jun 2,2010 at 09:01 PM
Subject: fences do not always make good neighbors

I thank Michael Rogovin (v58n22) for bringing up a fresh topic.

Believe it or not his cases are explicitly discussed in Jewish law (and I even
cited this Jewish law once before (in connection with slit skirts...have fun
searching the archives for this:))

In fact this is a delightful matter of logic. Where do you find such laws.
Simple...in the laws of Neighbors (Shchaynim). 

And where  in neighbor law would you find about trees on adjacent properties?
Simple and rational...chapter 10 which deals with required (and permissable)
distancing of damaging agents between neighbors.

The drama starts in paragraphs 4 and 5 WHICH GIVE THE PRINCIPLES TO RESOLVE

> If a person wanted to soak cotton on the border of his neighbor...the issue
> arises that the water from the soaking will seep into the ground possibly
> causing damage to the neighbor!

> The cotton soaker NEED NOT ABSTAIN. On the contrary it is the NEIGHBOR who
> must adjust to avoid the damages.
> When is the above [that the cotton soaker need not abstain] said. When the
> damage naturally comes AFTER the cotton soaker COMPLETES his task.But if the
> damage comes WHILE the cotton soaker is completing his task then it is the
> cotton soaker who must remove the damaging agents.

> What does this resemble. It resembles a person shooting arrows towards his
> neighbors and defends his action by stating 'I am doing it on my own
> property.'

In paragraphs 9-11 various tree cases are discussed. If your neighbors tree is
on your property and you need the air space to mow your lawn you can cut it.
Similarly if you built a cistern on your property and found roots of your
neighbor's tree you can cut them (And depending how close give him back the wood).

More is said but these are the basic principles and should suffice to answer the
questions raised.

Russell Jay Hendel; Phd ASA http://www.Rashiyomi.com

From: Alex Heppenheimer <aheppenh@...>
Date: Fri, Jun 4,2010 at 01:01 AM
Subject: fences do not always make good neighbors

In MJ 58:22, Michael Rogovin asked:

>Any thoughts on the following situations from a halachic perspective. Even
>pointing me to responsa or primary sources would be appreciated.

> (1) A tree entirely on the property of person A is diseased, though assume
> it is unknown to A (though probably could have been determined by
> professional examination. A strong thunderstorm causes a large limb to break
> off and fall onto B's and C's properties, resulting in damage to a fence
> between B and C's property). A disputes any liability since the damage was
> on B's (and C's) property. Is A liable to B (and C)? Is there a statute of
> limitations?

Keeping in mind, of course, that IANAP (I am not a posek), some thoughts:

I believe that this would fall under the category of "eish" (lit. "fire"). This
is defined more broadly as any case where something belonging to A is moved by
an external force (such as the wind) and thereby causes damage. (Shulchan Aruch,
Choshen Mishpat 418:1)

If that's the case, then the fact that the damage was on someone else's property
wouldn't make a difference to A's liability, because that is indeed the case
where the tort of "eish" applies. However, conceivably A might be able to plead
an exemption based on this having been caused by a strong thunderstorm - i.e.,
that the tree limb wouldn't have caused damage under normal circumstances
(paralleling the case where a fire is spread by an unusually strong wind -
ibid., :9). Possibly, then, it would depend on an expert's evaluation of whether
a normal wind would have been enough to cause the same damage.

> (2) About 14 months after the above, another strong wind storm severely
> damages a tree that B claims is on A's land (based on B's survey), and A
> claims is on B's land (B claims, reading A's survey, that they are not
> consistent, but according to B, A's survey shows the tree is at best on the
> borderline, 50/50. A disputes B's reading of the survey). A tree expert says
> the tree is in imminent danger of collapsing and falling onto B's property
> and will likely damage B's house. B contacts A about removing the tree, but
> A is away and B does not wait for A and has the tree cut down immediately.
> The tree's core was rotted. A disputes B's claim to pay for the removal of
> the tree or to split the cost, since the tree was (a) on B's side of the
> fence and (b) was at risk only to B. Can B recover the full or 1/2 of the
> cost of the removal of the tree?

I'm not quite sure on what grounds B would have a claim. Granted that he would
seem to have the right to cut down the tree if there's no other way to prevent
his own property from being damaged (this parallels a case in Shulchan Aruch,
Choshen Mishpat 383:2, concerning one ox attacking another); but this would seem
to be similar to a case ibid. 416:1, where A has to be formally warned by a beis
din (Jewish court) that the tree is weak, in order to become liable to cut it
down (within thirty days normally, or sooner if the danger is imminent) - and in
this case there was no such warning. (As for the argument about whose property
it was on - that would be a separate issue; it might involve one or the other of
them having to swear to the truth of their claim.)

> (3) There are other trees either on the border or on A's property which,
> while healthy now, could fall and damage B's property. Can B compel A to
> inspect and maintain the trees to prevent foreseeable damage? Would A be
> liable if any tree which it knows or could know was weak and it falls? Is A
> liable regardless for any damage to B even from healthy trees that fall?

I can't see how he'd be liable for damage from healthy trees, because that would
be "oness" - something unexpected and beyond his ability to control (short of
cutting down all of the trees, which is unreasonable to expect of him). I don't
know whether he can be compelled to perform regular inspections, although
unquestionably it would be at least "middas chassidus" (a pious person's way of
acting) to do so (see Taanis 20b, about Rav Huna).

Aside from all of the above considerations, there is the principle that "dina
demalchusa dina" (the law of the land has the force of Torah law). There are
various details and opinions about when and where this applies, but as far as I
know, it's undisputed that it is true of monetary law. So in all three of the
above cases, American (or other applicable) civil law would also have to be
taken into account in assigning responsibility and adjudicating claims.

Kol tuv,


From: Stuart Pilichowski <stupillow@...>
Date: Mon, May 31,2010 at 02:01 AM
Subject: halachicly correct dress for women 

Carl Singer wrote:
> Please define halachicly correct dress for women -- there are significant
> variants among Torah observant communities.

Maybe I'm naive or very very observant, but I have no problem determining
immodest dress in women!

Like the proverbial definition of pornography, I certainly know it when I see it.

The Muslims have the same issue as we do with immodest dress among their young.
Every body part is covered, but extremely tight fitting. Bright colors, stiletto
heels, make up. The Imams rail against this conduct in their sermons as well. 

Stuart Pilichowski
Mevaseret Zion


From: Perry Zamek <perryza@...>
Date: Fri, Jun 4,2010 at 12:01 AM
Subject: hidur mitzva [was: tefillin bag]

The discussion of the decoration of tefillin bags, and the idea that 
different artistic tastes would allow (or perhaps require) different 
styles of decoration, got me to thinking about the concept of "hidur 
mitzvah". Most people would understand this term to mean "beautifying 
the mitzvah" or "carrying out the mitzvah in a more elegant/aesthetic way".

But the word "hidur" is related to a more commonly used term - mehadrin 
(and mehadrin min hamehadrin). These terms appear in the Talmudic 
discussion of the Chanukah lights: the basic mitzvah is one light per 
family per night, the "mehadrin" light one light per person per night, 
and the "mehadrin min hamehadrin" light (following Beit Hillel) one 
light on the first night, two on the second, etc.

This use of the term "mehadrin" seems to reflect the idea of beautifying 
the mitzvah (by increasing the number of lights). No one can argue (at 
the level of Talmudic pshat) that the "strict" halacha is to light one 
light per night.

However, common usage these days is to understand mehadrin as being a 
stricter level of observance, involving more chumrot [stringencies] or 
the concurrent application of parallel halachic views ("maximum position 
compliance", a term that appears in Rabbi Haym Soloveitchik's "Rupture 
and Reconstruction"), almost to the disparagement of those who follow 
the basic halachah.

Is following a stringency (or multiple stringencies) indeed a hidur 
mitzvah (a beautification of the mitzvot)?

Perry Zamek


From: Martin Stern <md.stern@...>
Date: Sun, May 30,2010 at 05:01 AM
Subject: marriage and separation

On Thu, May 27,2010,  Orrin Tilevitz <tilevitzo@...> wrote:
> This topic arose from a posting by an observantly-inclined Jew who proposed
> having sexual relations, not necessarily leading to conversion and marriage,
> with a non-Jewish woman. While I recognize that the discussion has evolved, I
> would imagine that the anonymous poster is still following this thread and so
> I have the following clarifying questions, which may have been addressed
> before:
> 1. Can a non-Jewish woman qualify as a pilegesh? (Ignoring the case of eshet
> yefat to'ar; when I told my rabbi about this thread, he facetiously suggested
> that the anonymous poster start a war and take the woman as such).

Whether regular sexual relations with a non-Jewish woman (marriage as such
being halachically impossible), other than from the now no longer existent 7
Canaanite nations, is an issur de'oraita [prohibited by Torah law] is purely
academic since it is clearly at least an issur derabban [rabbinically
prohibited]. On an occasional basis, such activity would qualify as znut
[harlotry] and hardly be something that could be condoned, let alone encouraged,
though the punishment is not clear unless the act takes place in public when
kanaim pogim bo [zealous people can express their indignation by killing the
couple cf. the case of Pinchas killing Zimri and Cosbi bat Tsur].

> 2. Does the status of "nidah" [menstrually unclean] apply at all to a
> non-Jewish woman, and if so is it removed by her immersion in a mikvah?

Mide'oraita [by Torah law], the concept of tumah [ritual impurity] is not
applicable to non-Jews. However Chazal [the Talmudic sages] ruled that all
non-Jewish males should be considered as zavim [men who have had a
pathological genital discharge] and all non-Jewish females zavot [women who
have suffered three days of pathological uterine bleeding in the 11 days
after the end of their regular 7 day-long niddah period]. Since their purpose
was to discourage Jewish men from consorting with non-Jewish women they did not
rule that this rabbinic tumah could be removed by immersion in a mikveh.

> 3. Again if it applies, is having sexual relations with such a woman an issur
> karet, as it is with a Jewish woman?

Whether there is such a thing as karet derabban [rabbinically based
punishment of excision] is an interesting question but, since it is of
purely academic interest, it has no practical relevance. Anyone engaging in
such activity would find out the answer in due course!

Martin Stern

From: Russell J Hendel <rjhendel@...>
Date: Wed, Jun 2,2010 at 10:01 PM
Subject: marriage and separation

(OT) Orrin Tilevitz asked 3 questions about anonymous' original questions. REMT
(Rabbe Elazar M Teitz) responds in v58n21. I believe these answers should be
supplemented. Here are the questions, the responses, and my addendums.

(OT) QUESTION 1. Can a non-Jewish woman qualify as a pilegesh?

(REMT) Since pilegesh means a one-man woman, distinct from a wife only by lack
of kiddushin and k'suba (formal marriage and marriage contract), and since for
non-Jews there is no state of kiddushin, so that marriage is defined as living
together, it follows that having a non-Jewish woman as a pilegesh is an act of

(RJH) I would add what David Tzohar said v58n21 >> The Shulchan
Aruch decided in favor of the Rambam, along with RIF and ROSH, therefore the
halacha is that today concubinage is prohibited, and is considered znut
[harlotry].>> In other words the issue is that concubinage is prohibited even
for Jewesses. (The fact that minority opinions hold otherwise is irrelevant).

(OT) QUESTION  2. Does the status of "nidah" [menstrually unclean] apply at all
to a non-Jewish woman . . .?

(REMT) By Torah law, no. However, by rabbinic decree, it does.

(RJH) I would add (Rambam, Isuray Biah, 12:2) that this applies  when they have
a live-in situation (not casually). The original question with anonymous seemed
to be a live-in situation.

(OT) QUESTION 3. Again if it applies, is having sexual relations with such a
woman an issur karet, as it is with a Jewish woman?

(REMT) Whether or not it applies is irrelevant.  By Torah law, niddah applies
only to a Jewish woman.  However, there is karet, albeit of a lower level,
described in the Talmud as "karet midivrei kabbala;" i.e., one derived from
Nevi'im (the books of the Prophets, rather than from the Torah) for _any_
cohabitation with a non-Jewish woman, whether in a permanent relation or in a
casual encounter. See, e.g., Rambam Hilchos Issurei Bi'ah (Maimonides, Laws of
Prohibited Cohabitation), 12:4-6. 

(RJH)I was surprised that Rambam was ONLY cited until paragraph 6. I think
Orrin's original request was that anonymous be answered. But Paragraphs 7,8 of
Chapter 12 explicitly says (paraphrased)"The issue is not whether there is
karet...even though there is no court death penalty....this sin (sex with Non
(ultimately) C) REBEL AGAINST GOD.

(RJH) So...How would I answer anonymous. I would a la Rambam 12:7-8 tell him
where he is headed. He is headed to a probable personal removal from the Jewish
people with rebellion against God. If he is unaware of this he should separate
now from this woman.

I have also requested that mail jewish discuss the possibility of fulfilling
this person's needs with Jewish women. That is it would facilitate separation if
anonymous understood his emotional needs and how a jewish woman could fulfill them.

Russell Jay Hendel; Phd ASA http://www.Rashiyomi.com/



From: David Tzohar <davidtzohar@...>
Date: Wed, Jun 2,2010 at 03:01 PM
Subject: modesty and separation of the sexes

Akiva Miller asked why I feel there is nothing wrong with separate tables
for men and women but I find the idea of seperate sidewalks for men and
women extreme. 

Before answering this specific question I would like to make a general observation. 

There are in general three levels of observance in mitzvot: meikil (lenient),
machmir (stringent) and ikkar hadin (accepted practice according to the majority
of rabbinic decisors). Whereas in many cases we can say hamachmir tavo alav
habracha (he who is stringent will be blessed) , it is never said he who is
lenient will be blessed but rather there are certain situations where it is
possible to go according to lenient opinions even if they are the minority.

Saying this, it is also a rule that the poskim of our generation should refrain
from burdening us with new chumrot that were not practiced in former generations. 

To  answer the question about separation of the sexes and modesty. There is
separation that is definitely ikkar hadin like prayer where there is
separation with a mechitza and there are practices like separate sidewalks
which are definitely new chumrot. 

Seperate tables at a kiddush falls somewhere in the middle. There are several
responsa in Iggerot Moshe where Rav Moshe Feinstein said that at festive public
meals like sheva brachot it is taken for granted that men and women sit at
separate tables, he deals with the question of whether or not a mechitza is
necessary. Therefore it cannot be said that this is a new chumra if the foremost
American Posek of the last generation ruled this way. On the other hand I
believe there are more lenient opinions which could be found. In any case it is
a long way from separate sidewalks.

David Tzohar


From: David Tzohar <davidtzohar@...>
Date: Sun, May 30,2010 at 03:01 PM
Subject: zeitgeist and halacha

Yisrael Meidad used the example of the X-mas tree to show how a custom which
was formerly acceptable (decorating the synagogue with tree branches on
Shavuot) was later forbidden. This was not because of a change in
"zeitgeist" but because this case comes under the halachic heading of
"chukkot hagoyim" (practices of the gentiles). When setting up a tree became
part of the observance of a gentile holiday it could no longer be used in
the synagogue as it would be considered imitating the religious practices of
the gentiles. 

Besides this there is a biblical prohibition of "ashera" (sacred tree as
worshipped by the Canaanites). For this reason it is prohibited to pray while
facing a tree.

David Tzohar


End of Volume 58 Issue 26