Volume 61 Number 08 
      Produced: Fri, 10 Aug 2012 03:27:25 EDT

Subjects Discussed In This Issue:

Almost never chopping down fruit trees? 
    [Sammy Finkelman]
Concubinage revival? (2)
    [Keith Bierman  Leah S. R. Gordon]
Meat after Tisha B'Av 
    [Isaac Balbin]
No Mechitza - what to do? 
    [Deborah Wenger]
Ritual hand washing after delivery 
    [Orrin Tilevitz]
Waiting for the Rabbi (2)
    [Chaim Casper  Martin Stern]


From: Sammy Finkelman <sammy.finkelman@...>
Date: Thu, Aug 9,2012 at 08:01 PM
Subject: Almost never chopping down fruit trees?

The New York Times had an article last week about some Jews not
chopping down fruit trees.


It is not talking about wanton chopping, but even when to avoid doing it (and
not letting the tree stop something) would amount to hefsed merubah [excessive
expense - MOD].  It seems that some people are taking the position almost as if
a fruit tree could be chopped down only in case of pikuach nefesh, or so it appears.

They quote three reasons:

1. There's the passage in Devorim about not chopping down fruit trees (when you
could use other trees!)

I know the general idea of Baa'l Tashchis - not wantonly destroying anything,
not just fruit trees, comes from there. Here is one place that discusses the
general idea:

2. The New York Times says there are also unspecified Talmudic sources. Can
anyone say which ones? In the Talmud the idea of not getting rid of bread crumbs
is mentioned somewhere but this is not the halachah.

3. And then there's the Will of Rabbi Yehudah HaChosid.

The New York Times quotes Rabbi Saul J. Berman, identified as an associate
prefessor of Jewish Studies at Yeshiva University as saying: "It's really
dangerous to cut down a fruit-bearing tree because you're tampering with God's
property. And if you want to tamper with God's property, be cautious."

So when someone wanted to build a new stoop in a house in Borough
Park, he  suddenly wondered about a tree he had and took a branch of
the tree to the Brooklyn Botanic Gardens and discovered it was a
mulberry tree. He told the paper:

"The rabbis wouldn't let me take it down. They told me if there is any
possibility, even if it costs you money, you should work around it."

And what he did is spend  over $100,000 extra so that now a black metal
staircase wraps partly around the tree, and a beige wheelchair-accessible
elevator stands beside it.

At Shloimy's Bake Shoppe on 12th Avenue in Brooklyn, there is a glass enclosure
toward the back, right behind a giant oven and stacks of baking trays and inside
this glass box, which is open to the sky, there is a berry tree.

And in a third example given in the article, in another place steps extend from
a house sideways at roughly a 45-degree angle to avoid a tree directly in front
of the doorway. The article shows a picture of the front of a house, with a tree
to the side of a staircase, in a box, leaning out on the sidewalk, which is
apparently that third example. It is captioned "The stairs leading to the door
of a building in Borough Park, Brooklyn, were constructed on an angle to
accommodate a fruit tree, a custom among Orthodox Jews" although it is a little
hard to tell from the picture that it is at an angle.


From: Keith Bierman <khbkhb@...>
Date: Wed, Aug 8,2012 at 03:01 PM
Subject: Concubinage revival?

In MJ 61#07, Martin Stern wrote:

> Yisrael Medad quoted from a "The Forward" 'blog (MJ 61#06):
>> The chief judge of Jerusalem's rabbinical court, Rabbi Eliyahu
>> Abergel, recently ruled that a man may take a concubine if his wife is
>> unable or unwilling to bear children, and unwilling to divorce him.
>> ...
>> Abergel states that his ruling "will enable husbands to fulfill the
>> commandment of procreation," and that a concubine can live with the
>> couple or separately....

> I presume Rabbi Abergel is a Sefardi, and therefore not covered
> by the Cherem Rabbeinu Gershom, so I cannot understand why he
> does not rule that the man is permitted to take a second wife
> in these circumstances. If the husband agreed at the time of
> his first marriage not to do so without his first wife's consent
> and she does not agree, there might be grounds for annulling the
> first marriage under the heading of mekach ta'ut since he would
> never have made such an agreement had he envisaged such an extreme situation.

Is the Cherem really still in effect? I recall one talmud shiur where we
were sent off to try to figure that out, and the consensus appeared to be
that it "really" only had force for 1000 years (and that afterwards we were
essentially following it because it had become minhag).

The "evasion" of secular law seems like the most likely rationale for such
an approach to me. Or is this "really" trying to establish a basis for a
"host mother" (vis, IVF, using eggs and sperm harvested from the married
couple, and no actual direct sexual encounter between the man and the

From: Leah S. R. Gordon <leah@...>
Date: Wed, Aug 8,2012 at 05:01 PM
Subject: Concubinage revival?

Seriously?  Four men reply (MJ 61#07) to the "concubinage" question and all they
have to say is hey, consider polygyny instead but anyway don't forget to send
her to the mikvah.  Sometimes I think I'm on a different planet from the
rest of M.J.

Does it sound like a nice life for the concubine?  Can any of you imagine
leading such a life yourself, sharing your lover and being second-class?
And please don't lecture me about the halakha considering it different for
males vs. females, because the feelings  are 100% the same (if not worse
for a woman since she's the one having the pregnancy or watching someone
else have it instead).

How about for the wife?  What kind of terrible position does it put her
in?  Think about how you would feel to know that your beloved spouse is
having tons of sex, even having babies, with someone else.  If you can't
imagine yourself in such a position, imagine your mother, sister, daughter,
friend - is this a life you would think appropriate?  Hopefully the one
poster who said that a married man taking a lover who is mikvah-using and
exclusive, "has on what to rely" - is open about these beliefs before
dating or marrying some unsuspecting woman.

For that matter, the husband?  What kind of economic, emotional, and
practical difficulties is he getting himself into?

When you have a dinner party, some say that you are supposed to practice
sitting in each of the table places, to make sure that each is comfortable,
has leg/arm room, etc.  Marriage/sex laws should have at least that much
consideration, the "how would you feel" aspect.  It's part of living in the
modern world with really basic human rights.

One of the biggest advantages of having this discussion in 5772 instead of
1772 (aside from email and widespread female literacy) is that the problems
with polygyny/concubinage (i.e. reserving multiple women for the sexual
ownership/use of one man) are well-documented, and these are just the ones
I remember:

1. It reduces the status of all women, in any position - when multiple
women share one man, it reduces their economic, social, educational, and
political power.  And yes, the Leah Gordons of this list think that is a
drawback (!).

2. It changes the ratio of available men:women, usually preventing poorer
men from mating at all, and leading in many cases to an underclass of
dissatisfied, disengaged, frustrated men who may turn to crime (the Mormons
dealt with this for many years by counseling out many young men at the age
of maturity).

3. It's not a fair or moral choice, to allow some humans to have multiple
lovers, some to have only one, some to have none at all, by accident of
gender or money.  Yes, thank goodness Israeli law, secular or otherwise,
prohibits polygyny.  This does not mean that everyone gets a great spouse;
life and law can't guarantee that outcome.  But equal status for men and
women is a really good start.

In the olden days, polygyny was practiced, some think, in cultures where
known paternity was a priority (not universal in all cultures, by the way),
and it was thought to be a good way to assure known parentage.  In
actuality, studies seem to show that known or enforced paternity was more a
result of low status/power of women, often correlated with severe
restrictions on their education and mobility.

Polygyny/concubinage is one of those things like public stonings that we
should be really grateful to be rid of in this day and age, no matter how
Orthodox we are.

--Leah Sarah Reingold Gordon


From: Isaac Balbin <isaac@...>
Date: Wed, Aug 8,2012 at 10:01 PM
Subject: Meat after Tisha B'Av

When Tisha B'Av falls on Shabbos (as was the case this year), we fast on the
10th of Av (the subsequent Sunday). Immediately after the fast, we are normally 
not permitted to eat meat because there was still fire burning on the 10th. This
year, it's technically the 11th when the fast ended. Yet, Ashkenazi Poskim
(decisors) still prohibit the consumption of meat. The Mishna Brura refers to a
responsum of the Maharil. I still have trouble understanding the rationale.
True, when a fast is enacted in order to induce t'shuva (repentance) there is
the notion that one exit the fast under similar conditions to entering it, and
it could so be argued that one shouldn't automatically eat meat immediately at
the conclusion. However, Tisha B'Av is about mourning, and the fast is related
to mourning. It is also referred to as a Moed (happy day .. in the future). I
know the AriZal permitted meat, as did the Chida and other Sefardi decisors.
Can someone please explain the rationale for Ashkenazi practice? Someone
mentioned it could be related to the Aninus (mourning) of the Kohen Gadol (High
Priest) as mentioned in the Rambam.


From: Deborah Wenger <debwenger@...>
Date: Wed, Aug 8,2012 at 03:01 PM
Subject: No Mechitza - what to do?

Stuart Pilichowski wrote (MJ 61#06):

>> Here's the scenario: Arrive at shul for Eichah and Kinnot Saturday night.
>> Someone took the portable mechitzah. Now there's no mechitzah. We have 
>> a very small minyan of about twenty. Two women arrive.
>> What to do? Ask them to leave, because we have no mechitzah . . . . or 
>> stay with us, but seated in the back where you'll be to yourselves?!?!?
>> Remember, in asking them to leave, they would not go elsewhere and 
>> they would frankly be insulted.
>> Are Eichah and Kinnot required to be read to an audience with a mechitzah?

and Stuart Wise replied (MJ 61# 07):

> Why would they be insulted? Is this not an Orthodox minyan?
> You would think on their own they would feel they would have
> to leave. Was there not a hallway where they could sit?

To my esteemed former colleague, Mr. Wise: Change "women" to "people" for a
minute. Two people come to a minyan and are told (for whatever reason) to
leave, even though there is no other minyan to go to. Why would you think
they would NOT be insulted to be told that there is no place for them at
this tefillah, especially on Tisha B'Av, when we join together in our
mourning? Wouldn't it be better to find some accommodation that would enable
them to stay? I would think that on Tisha B'Av especially, this shouldn't be
too difficult - if everyone is sitting on the floor anyway, a mechitza can
easily be made from some unused chairs, for example.

More than once I have come to a shul, say, to daven mincha when I have to
say Kaddish, and have been told that there's no mechitza and I'll have to
stand out in the hall. Believe me, it's insulting to be treated as a
second-class (or less) citizen.

Deborah Wenger


From: Orrin Tilevitz <tilevitzo@...>
Date: Wed, Aug 8,2012 at 03:01 PM
Subject: Ritual hand washing after delivery

In MJ 61#07, Martin Stern responded to my query about why a woman was given a 
washing cup after giving birth as follows: 

> Presumably, this was done because during labour her hands very likely
> touched parts of her body that are normally covered. Others in such a
> situation would have to wash their hands, so why should she be any different?

I am not sure why one would so presume -- the ob/gyn would presumably keep her
hands out of the way for sanitary reasons -- but is this requirement true
generally, or only before one davens?


From: Chaim Casper <surfflorist@...>
Date: Wed, Aug 8,2012 at 08:01 PM
Subject: Waiting for the Rabbi

Martin Stern wrote (MJ 61#06) about a Rosh Yeshiva who visited his
synagogue while the mara d'atra (the synagogue rabbi) was away.   The
Rosh Yeshiva's davening was overly long.   Martin's question was should
the shaliah zibbur (prayer leader) have waited for the Rosh Yeshiva?

Perets Mett responded (MJ 61#07) that "It is customary to wait for the
shul's rabbi.   I know of no custom requiring the shliach tsibur to wait
for a visiting dignitary, unless the community wishes to honour him

Rav Dovid Lifshitz, zt"l, was a Rosh Yeshiva at RIETS (the yeshiva part
of Yeshiva University), a former member of the Moetzes Gedolei HaTorah and the
former president of Ezras Torah.   Precisely because of Martin's
question, Rav Dovid would daven by himself away from a minyan when he
davened at synagogue instead of the yeshiva.  He did not want the ba'alei
batim (shul members) to wait for him as he felt that honor solely
belonged to the synagogue rabbi.

I remember vaguely seeing in the Mishneh Brurah that we wait for mara
d'atra to finish the Amidah and Shma.  I do not remember his saying we
wait for any visiting Rosh Yeshiva.

B'virkat Torah,
Chaim Casper
North Miami Beach, FL

From: Martin Stern <md.stern@...>
Date: Thu, Aug 9,2012 at 02:01 AM
Subject: Waiting for the Rabbi

Perets Mett wrote (MJ 61#07):

> It is customary to wait for the shul's rabbi.

This of course only applies if he is present. Otherwise the Shulchan Arukh
rules that we wait before starting chazarat hashatz for "minyan o rov
minyan". The first clearly means "10 adult men" whereas the second means "the
majority of these 10, i.e. 6 men".

What I write below applies primarily to weekdays when people may have to
leave shul at a certain time.

Unfortunately some people mistranslate the word "minyan" to mean
"congregation" and want to wait until more than half of them have finished
(e.g. if there were 50 they would wish to wait until 26 have finished). This
is an unfortunate example where changes in language usage give rise to
misunderstandings of halachah (in this case a very big chumra).

Some people are very particular not to start until they are absolutely sure
that 10 (so that those 10/the "minyan o rov minyan" should be able to answer 
"amen" to his brachot, as required by halachah) are ready, even where some may 
not be visible because of the layout of the shul and other members of the 
congregation have indicated that a sufficient number are ready. If they
have any doubt, the halachah is that they should make the proviso that their
chazarat hashatz should be a tefillat nedavah [voluntary/extra prayer], but they 
seem to be over-concerned at the possibility that there might not be 10 men 
present actually paying attention and answering amen with proper kavannah. 

It seems that they also do not count people with hearing aids, lest they are
considered not really to hear the shatz directly, or post-barmitzvah boys, lest
they not have brought shtei se'arot [reached physical maturity] or even if they
suspect some may not pay attention and answer "amen" because they are learning
or, G-d forbid, talking to their neighbour. The downside of such delays is that
sometimes people get bored and go out to the lobby to read the notice board,
which compounds the problem in that the shatz cannot see them and count them to
allow himself to start, even though they would return once they heard him
begin. What do others think of these stringencies?

I have always wondered about the origin of the custom of starting after 6
people have finished their quiet shemoneh esrei. I have speculated that this
may be because one can assume that if 6 have stepped back, then another 4 or
more will be saying "Elokai netsor" and therefore able to answer "amen".
Does anyone know of any source for this?

On another point, if, as often happens, a few meshullachim [people seeking 
charity on behalf of others --Mod.] enter, can they be counted towards the 10 
(or 6) required - after all, they can answer "amen" to the brachot of the shatz, 
so the latter's brachot would not be levatalah [in vain].

Martin Stern


End of Volume 61 Issue 8