Rashi quotes the medrash that when Ya'akov saw Ephraim and Menashe he initially refused to give them a beracha because he didn't know who their mother was. It was only after Yosef showed Ya'akov his shtar kedushin and kesuva that Ya'akov agreed to bless them.
Two questions come to mind. First of all, what was bothering Ya'akov? Was he really concerned with who Yosef married? Shimon married someone fron Cana'an according to one pshat and Yehuda eventually married Tamar who did not have a great lineage. Furthermore, if Osnas was Dina's daughter didn't Ya'akov know that? Secondly, what did Yosef hope to accomplish by showing the shatr kiddushin and kesuva and how did this appease Ya'akov.
I believe the key to the answer is to understand what Ya'akov was trying to accomplish. The berachos that Ya'akov was giving Ephraim and Menashe were not just stam berachos, the intent of the berachos were to make them into Shevatim. In order to be considered Shevatim Ya'akov had to insure that they had the appropriate lineage. However, he wasn't concerned where Osnas came from, but rather he was concerned over what type of relationship Yosef had with Osnas-was it a real marriage or was she his pilegesh.
I heard recently a shiur from Rav Belsky that I found online, where he explains that when Ya'akov moved into Bilhah's tent his intention was to change his relationship with Bilhaha and Zilpah from being his pilagshim into being his wives. In other words he was koveia that they were no longer shifachos but had the status of imahos. The purpose of this was to ensure that all 12 sons would be fit to be shevatim. If Bilhah and Zilpah would retain their status of shifachos then their children would only be considered avadim and not part of the shevatim.
Reuvain did not understand this and he thought Bilhah was still his father's pilegesh-that's why the posuk says he slept with the pilegesh of his father. The Torah is describing the mindset of Reuvain. Rav Belsky further pointed out that after this ma'aseh, the Torah constantly refers to the shevatin as "12 sons of Ya'akov" and as "achim/brothers". The Torah is stressing this point that all 12 sons were shevatim and even the children of Bilhah and Zilpah were no longer considered avadim but shevatim.
With this idea, we can understand the whole conversation between Ya'akov and Yosef. In order for Ephraim and Menashe to be Shevatim, they couldn't be sons of a pilegesh. They had to be children of a real marriage. It's possible that even though Ya'akov was able to change the status of Bilhah and Zilpah (and consequently the status of their children) retroactively, when it came to Yosef's children he couldn't do that since they were already starting at a lower level having come from Yosef and not from Ya'akov. (You can also probably take issue with Rav Belsky's hanacha that originally Bilhah and Zilpah were only shifachos, maybe they were always imahos just Reuvain did not realize this).
The Ra'avad in Hilchos Ishus 1:4 writes that a pilegesh has kiddushin with no kesuva. The Maggid Mishna says this is also the Rambam's shittah, however the Lechem Mishna writes that from the Rambam in Hil' Melachim it seems the Rambam holds a pilegesh has no kiddushin and no kesuva. Either way, (although it works better with the Lechem Mishna), we can unde3rstand why Yosef responded by showing Ya'akov his shtar kedushin and kesuva. He wa sshowing Ya'akov that Osnas was his real wife andnot just a pilegesh and therefore his sons were fit to be made into shevatim.
(Ayin Sha'arei Aharon who mentions this idea as well)
Thursday, December 31, 2009
Monday, December 28, 2009
Parshas VaYigash:Motherhood-based on cconception or childbirth
OKay, I want to end this month with more than one post, so I will stop being lazy and post my latest chaburah.
Rashi on the posuk "Shaul ben HaCana'anis" brings the medrash that Shaul was the son of Dina and Shimon. The question is that even a Ben Noach is not allowed to marry his maternal sister. How then could Shimon marry Dina. One approach to answer this question is to use another medrash. The Targum Yonason Ben Uziel tells us that when Leah was pregnant with her 7th child she davened to Hashem that it should be a girl. At the same time, Rochel was also pregnant. Hashem caused the fetus in Leah to be switched with the fetus in Rochel. Rochel gave birth to Yosef and Leah gave birth to Dina. Since Dina was conceived in Rochel's womb you can argue that her mother was really Rochel. Consequently, she was muttar to marry Shimon.
In case you think that this is all derush, there is a very important halachic nafka mina. When a baby is born in-vitro or through a surrogate mother, who is considered the mother -the one who supplies the egg and conceives the child or the one who gives birth to the child. (or in the word of Rabbi Bleich is motherhood defined by parturition or by gestation).
There are a number of teshuvos/articles written on this topic. Rabbi Bleich has an extensive article in his Contemporary Halacha vol 4. Techumim vol 5 also has a discussion on this topic. Finally, there is also an article in the Jouranal of Halacha and Contemporary Society vol 38.
Just to note, we are not discussing whether it is muttar l'chatchila to do such a thing, only b'dieved if it was done who is the mother.
I will just bring 1-2 proofs for each side of the equation.
Parturition or Childbirth
1) The Tzitz Eliezer quotes the sefer Tzur Ya'akov who actually wants to bring a rayah from the Yonason ben Uziel quoted above. However, the rayah is in the opposite direction. Since the torah lists Dina as Leah's daughter and Yosef as Rochel's son, we see that motherhoood is based on teh woman who gives birth to the child.
Rav Shternbach in an article in a medical torah journal called "b'shvilei u'refuah" argues that you can't bring a rayah from derush. Furthermore, there is another pshat, that the fetus' weren't switched but rather the neshamos were switched.
2) The sefer Even Yakar (quoted by the Tzitz Eliezer) discusses a case of an ovarian transplat (which seems to have never happened) and he brings a rayah from a gemara in Sotah 43B. The gemara says that if you graft a tree less than 3 yrs old onto a tree that is older than 3 years, the new tree is patur from orlah. We see you follow the mother who gave birth.
3) Rav Zalman Nechemiah Goldberg in Techumim vol 5 brings a rayah from Yevamos 97b. The gemara discusses a case of a non Jewish lady who converts when she is pregnant and then has twins. The gemara says these twins are considered brothers and there is a chiyuv yibum since at birth the mother was Jewish. Again we see you follow childbirth.
Gestation/Conception
Rabbi Bleich brings a Rabbi Akiva Eiger (also quoted in the Chavtzeles HaSharon on Vayigash) in Yorah Deia (SIman 87) as a proof that we follow conception. The halacha is that milk from a shechted animal can not create an issur basar v'chalav because we need "chaleiv imo"=milk from an animal who can be a mother. A shechted cow can not be a mother. Rabbi Akiva Eiger asks what is the din with a cow that is a treifa. Such a cow can not give birth but it can conceive. He says in such a case the cow is considered a mother. From here we see that motherhood follows conception.
Parturition and Gestation
Rabbi Bleich wants to say that both women are considered the mother. By kilayim of animals, the gemara says "choshishin l'zera ha'av" and the animal is considered to be a species from the father and the mother. Here too, the women who conceived contributed to this child and she should also be considered the mother.
According to the Jouranal of Halacha and Contemporary Society most poskim say the one giving birth to the child is the mother. But as always ask your local Orthodox poseik.
Rashi on the posuk "Shaul ben HaCana'anis" brings the medrash that Shaul was the son of Dina and Shimon. The question is that even a Ben Noach is not allowed to marry his maternal sister. How then could Shimon marry Dina. One approach to answer this question is to use another medrash. The Targum Yonason Ben Uziel tells us that when Leah was pregnant with her 7th child she davened to Hashem that it should be a girl. At the same time, Rochel was also pregnant. Hashem caused the fetus in Leah to be switched with the fetus in Rochel. Rochel gave birth to Yosef and Leah gave birth to Dina. Since Dina was conceived in Rochel's womb you can argue that her mother was really Rochel. Consequently, she was muttar to marry Shimon.
In case you think that this is all derush, there is a very important halachic nafka mina. When a baby is born in-vitro or through a surrogate mother, who is considered the mother -the one who supplies the egg and conceives the child or the one who gives birth to the child. (or in the word of Rabbi Bleich is motherhood defined by parturition or by gestation).
There are a number of teshuvos/articles written on this topic. Rabbi Bleich has an extensive article in his Contemporary Halacha vol 4. Techumim vol 5 also has a discussion on this topic. Finally, there is also an article in the Jouranal of Halacha and Contemporary Society vol 38.
Just to note, we are not discussing whether it is muttar l'chatchila to do such a thing, only b'dieved if it was done who is the mother.
I will just bring 1-2 proofs for each side of the equation.
Parturition or Childbirth
1) The Tzitz Eliezer quotes the sefer Tzur Ya'akov who actually wants to bring a rayah from the Yonason ben Uziel quoted above. However, the rayah is in the opposite direction. Since the torah lists Dina as Leah's daughter and Yosef as Rochel's son, we see that motherhoood is based on teh woman who gives birth to the child.
Rav Shternbach in an article in a medical torah journal called "b'shvilei u'refuah" argues that you can't bring a rayah from derush. Furthermore, there is another pshat, that the fetus' weren't switched but rather the neshamos were switched.
2) The sefer Even Yakar (quoted by the Tzitz Eliezer) discusses a case of an ovarian transplat (which seems to have never happened) and he brings a rayah from a gemara in Sotah 43B. The gemara says that if you graft a tree less than 3 yrs old onto a tree that is older than 3 years, the new tree is patur from orlah. We see you follow the mother who gave birth.
3) Rav Zalman Nechemiah Goldberg in Techumim vol 5 brings a rayah from Yevamos 97b. The gemara discusses a case of a non Jewish lady who converts when she is pregnant and then has twins. The gemara says these twins are considered brothers and there is a chiyuv yibum since at birth the mother was Jewish. Again we see you follow childbirth.
Gestation/Conception
Rabbi Bleich brings a Rabbi Akiva Eiger (also quoted in the Chavtzeles HaSharon on Vayigash) in Yorah Deia (SIman 87) as a proof that we follow conception. The halacha is that milk from a shechted animal can not create an issur basar v'chalav because we need "chaleiv imo"=milk from an animal who can be a mother. A shechted cow can not be a mother. Rabbi Akiva Eiger asks what is the din with a cow that is a treifa. Such a cow can not give birth but it can conceive. He says in such a case the cow is considered a mother. From here we see that motherhood follows conception.
Parturition and Gestation
Rabbi Bleich wants to say that both women are considered the mother. By kilayim of animals, the gemara says "choshishin l'zera ha'av" and the animal is considered to be a species from the father and the mother. Here too, the women who conceived contributed to this child and she should also be considered the mother.
According to the Jouranal of Halacha and Contemporary Society most poskim say the one giving birth to the child is the mother. But as always ask your local Orthodox poseik.
Tuesday, December 08, 2009
Parshas Vayishlach:Do you need a kli for the Menorah
The Avnei Nezer (Siman 500) discusses whether one needs to use a kli to light the menorah. The Chessed L'Avraham brings down 15 madreigos of a menorah, the best being gold then silver, copper etc. He then writes that one can not use egg shells because it is not a kli and also you can't use a kli that can't support itself. The Avnei Nezer paskens like the Chesed L'Avraham. He tries to prove that in the Beis HaMikdash, the kli used to hold the oil was considered a chelek of the ner of teh menorah and therefore, by Chanuka as well one needs a kli to hold the oil.
There are several chumros that come out of this.
1) One can not use a hollowed out potato to hold the oil since food is not m'kabeil tumah and is not considered a kli. (l'fi zeh tzarich iyun on the Holocaust stories where they were moser nefesh to put oil in a potato and light it. Acc. to the Avnei Nezer they were not yotzei).
2) If the kli can't stand by itself it is not a kli. Rav Shternbuch (Teshuvos V'hanhagos chelek 2) also paskens like the Avnei Nezer and he says that most of the glass cups we use are no good. Most of the cups we use have a nipple on the bottom and they can't stand on their own. Accordingly, they would not be considered a kli and you would not be yotzei ner chanuka.
3) If one has a gold menorah but uses glass cups, you would lose the hiddur of using a gold menorah, since you are really lighting with the glass.
4) If you just stuck candles down on the table you would not be yotzei.
Other than the Avnei Nezer and Rav Shternbuch, the other poskim I saw are all meikil for different reasons.
1) The Shevet Levi argues on the whole dimyon to the menorah in the Beis HaMikdash. Even if the Avnei Nezer is correct that in the Beis HaMikdash the kli is a chelek of the ner, who says that we would say teh same by the Chanuka menorah. The menorah in the Mikdash could not be made out of wood and only had 7 branches, while our menoros can be made out of wood and have 8 branches.
2) Rav Shlomo Zalman Aurbach zt"l in Halichos Shlomo says that the glass cup is batul to the menorah. Therefore, as long as the menorah can stand by itself, it makes no difference if teh glass cup can stand by itself. Furthermore, if the menorah is gold, you would still get the hiddur of using a gold menorah.
3) The Sdei Chemed (Mareches Chanuka Os 7) says that if the kli was originally made so that it couldn't stand it si not a chisaron in the kli and it is still considered a kli. The rayah is from a mishna in keilim. I also saw this brought down in a sefer on Hilchos Chanuka and the comparison was made to nitilas yadayim. By nitilas yadayim, we pasken if the cupo can't stand on its own but it was made liek that , it is still a kli. So hu hadin by Chanuka. Rav Shternbuch mentions this dimyon but he rejects it. I don't understand his sevara for rejecting it, but ayin sham.
4) The Az Nidbiru (chelek 13 Siman 49) points out that the Avnei Nezer brings Rishonim who are choleik on teh Chesed L'Avraham, namely the Radvaz, the Rashba and the Ran. Also, the poskim never indicate we should be machmir like the Chesed L'Avraham.
5) The Chacham Tzvi writes that one is yotzei if you stick candles on the wall. We see he didn't require a kli.
6) Finally, the Az Nidbiru (chelek 13 Siman 49) has a totally different understanding of the Chesed L'Avraham. When the Chesed L'Avraham writes that the kli must stand by itself, that is only because otherwise there won't be enough oil b'zman hadlaka to last the shiur.
There are several chumros that come out of this.
1) One can not use a hollowed out potato to hold the oil since food is not m'kabeil tumah and is not considered a kli. (l'fi zeh tzarich iyun on the Holocaust stories where they were moser nefesh to put oil in a potato and light it. Acc. to the Avnei Nezer they were not yotzei).
2) If the kli can't stand by itself it is not a kli. Rav Shternbuch (Teshuvos V'hanhagos chelek 2) also paskens like the Avnei Nezer and he says that most of the glass cups we use are no good. Most of the cups we use have a nipple on the bottom and they can't stand on their own. Accordingly, they would not be considered a kli and you would not be yotzei ner chanuka.
3) If one has a gold menorah but uses glass cups, you would lose the hiddur of using a gold menorah, since you are really lighting with the glass.
4) If you just stuck candles down on the table you would not be yotzei.
Other than the Avnei Nezer and Rav Shternbuch, the other poskim I saw are all meikil for different reasons.
1) The Shevet Levi argues on the whole dimyon to the menorah in the Beis HaMikdash. Even if the Avnei Nezer is correct that in the Beis HaMikdash the kli is a chelek of the ner, who says that we would say teh same by the Chanuka menorah. The menorah in the Mikdash could not be made out of wood and only had 7 branches, while our menoros can be made out of wood and have 8 branches.
2) Rav Shlomo Zalman Aurbach zt"l in Halichos Shlomo says that the glass cup is batul to the menorah. Therefore, as long as the menorah can stand by itself, it makes no difference if teh glass cup can stand by itself. Furthermore, if the menorah is gold, you would still get the hiddur of using a gold menorah.
3) The Sdei Chemed (Mareches Chanuka Os 7) says that if the kli was originally made so that it couldn't stand it si not a chisaron in the kli and it is still considered a kli. The rayah is from a mishna in keilim. I also saw this brought down in a sefer on Hilchos Chanuka and the comparison was made to nitilas yadayim. By nitilas yadayim, we pasken if the cupo can't stand on its own but it was made liek that , it is still a kli. So hu hadin by Chanuka. Rav Shternbuch mentions this dimyon but he rejects it. I don't understand his sevara for rejecting it, but ayin sham.
4) The Az Nidbiru (chelek 13 Siman 49) points out that the Avnei Nezer brings Rishonim who are choleik on teh Chesed L'Avraham, namely the Radvaz, the Rashba and the Ran. Also, the poskim never indicate we should be machmir like the Chesed L'Avraham.
5) The Chacham Tzvi writes that one is yotzei if you stick candles on the wall. We see he didn't require a kli.
6) Finally, the Az Nidbiru (chelek 13 Siman 49) has a totally different understanding of the Chesed L'Avraham. When the Chesed L'Avraham writes that the kli must stand by itself, that is only because otherwise there won't be enough oil b'zman hadlaka to last the shiur.
Monday, November 16, 2009
Parshas Chayei Sara:Punishment for those under 20 years old
I haven't had a chance to post my shiurim from the previous weeks. I decided I'll start with this week and work backwards.
Rashi quotes the medrash that Sorah had no sins at age 100 just like she had none at age 20. The medrash says that the reason Sorah had no sins at age 20 is because less than 20 a person is not punished b'dinei shamayim. The question is what does this mean and are there other m'koros besides this medrash.
The gemara in Shabbos 89B mentions this idea. Hashem wanted to destroy the B'nei Yisroel and part of Yitzchak's arguement in favor of the B'nei Yisroel was that for the first 20 years of a person's life they don't get punished.
The Rambam in Sanhedrin Perek 7 peirush hamishnayos also says we have a mesorah that under 2o there is no chiyuv kareis.
The Mizrachi in Chayei Sora also writes that this halacha applies to kareis. He says even though the Rambam mentions that one is who over 13 is chayav for malkos and kareis, he means that there is only a chiyuv malkos from age 13.
The Noda B'Yehuda and the Chida in Torah Lishma explain that this halacha applies to all chiyuvim b'dinei shamayim and not just kareis. However, they both point out that it applies b'olam hazeh. A person under 20 will not get punished in this world b'dinei shamayim. Once a person dies, you will get punished for aveiros you did under 20. Furthermore, you will also be held responsible for the aveiros you did as a koton, unless you did teshuva when you got older.
Finally, the CHasam Sofer and Chacham Tzvi both reject this whole idea. The Chasam Sofer says we don't find anywhere in halacha that a person under 20 is not punished. The gemara in Shabbos is aggadata and we don't learn from aggadata.
Rashi quotes the medrash that Sorah had no sins at age 100 just like she had none at age 20. The medrash says that the reason Sorah had no sins at age 20 is because less than 20 a person is not punished b'dinei shamayim. The question is what does this mean and are there other m'koros besides this medrash.
The gemara in Shabbos 89B mentions this idea. Hashem wanted to destroy the B'nei Yisroel and part of Yitzchak's arguement in favor of the B'nei Yisroel was that for the first 20 years of a person's life they don't get punished.
The Rambam in Sanhedrin Perek 7 peirush hamishnayos also says we have a mesorah that under 2o there is no chiyuv kareis.
The Mizrachi in Chayei Sora also writes that this halacha applies to kareis. He says even though the Rambam mentions that one is who over 13 is chayav for malkos and kareis, he means that there is only a chiyuv malkos from age 13.
The Noda B'Yehuda and the Chida in Torah Lishma explain that this halacha applies to all chiyuvim b'dinei shamayim and not just kareis. However, they both point out that it applies b'olam hazeh. A person under 20 will not get punished in this world b'dinei shamayim. Once a person dies, you will get punished for aveiros you did under 20. Furthermore, you will also be held responsible for the aveiros you did as a koton, unless you did teshuva when you got older.
Finally, the CHasam Sofer and Chacham Tzvi both reject this whole idea. The Chasam Sofer says we don't find anywhere in halacha that a person under 20 is not punished. The gemara in Shabbos is aggadata and we don't learn from aggadata.
Tuesday, October 20, 2009
Bereishis:The Mitzvah of Kiddushin
This past week I spoke about the mitzvah of kiddushin. In this week's parsha is the mitzvah of peru u'rivu. The question is how does kiddushin fit in? Is this also a mitzvah? There are 2 main opinions in the Rishonim.
Rambam
The Rambam (Hilchos Ishus 1:2, Sefer HaMitzvos 213) states clearly that kiddushin is a mitzvah. He counts the mitzvah of peru u'rivu and kiddushin as 2 mitzvos. According to the Rambam, if one wants to create a relationship with another person, it is a mitzva to do it through the mechanism called kiddushin.
The Kesef Mishna quotes Rav Avraham ben HaRambam who explains that the Rambam holds kiddushin and nisuin is one mitzvah. Kiddushin is considered the beginning of the mitzvah and nisuin is the end of the mitzvah. The KEsef Mishna is m'dayeik from the way the Rambam lists the mitzvah in his header. He writes "the mitzvah of nisuin through kiddushin and kesuva". I think you can add a diyuk from the sefer hamitzvos where the Rambam writes "it is a mitzvah livol isha through kiddushin". You see the entire process is the mitzvah.
You can contrast this with the Sefer HaChinuch who writes the mitzvah is to be m'kadeish an isha through kesef,shtar, biyah. He makes no mention of nisuin.
Rosh
The Rosh in Kesuvos (perek 1 siman 12) says kiddushin is not a mitzvah. He says if one wants to be m'kayeim peru u'rivu yuo can do it through a pilegesh, you don't need to get married. In fact it's not even a hechsher mitzvah like shechitah. By shechitah, you can't eat without shechitah, but you don't need kiddushin to be m'kayeim perui u'rivu
Nafka Mina
1) Birchas Eirusin
How do you understand the nature of the beracha on kiddushin? The Rosh writes it is not a birchas hamitzvah but a birchas hashevach. That is why the loshon of the beracha is not comparable to a regular birchas hamitzvah. We don't say "asher kidishanu l'kadesj isha". Plus we mention the issur arayos. We never find that we mention the issur in a birchas hamitzvah. Finally, that is way the beracha is said after kiddushin and not before, there is no requirement for oveir l'asiyason since it is only a birchas hashevach.
The Rambam (Ishus 3:23) says the beracha must be before the mitzvah due to oveir l'asiyason. In fact if you omit the beracha you can't say it after the kiddushin.
2) Mitzva Bo Yoser M'bishlucho
According to the Rambam we understand why the gemara says it's better to do kiddushin yourself. Since it's a mitzvah it is better to do it yourself. According to the Rosh why is it better? In fact the Netziv (Hemek Shailah Siman 165) says mitzva bo yoser m'bishlucho would apply to a hechsher mitzvah but only a hechsher mitzvah mentioned in the Torah (like Kovod Shabbos). A hechsher mitzvah not mentioned in the Torah does not have this requirement. Since kiddushin isn't mefurash b'kra there is no mitzva bo yoser m'bishlucho by kiddushin if it is only a hechsher mitzvah. (He uses this as a rayah against the Rosh).
You can answer the Rosh with a Ran in Kiddushin (Reish Perek 2). The Ran says mitzva bo yoser m'bishlucho applies to a man because it is assur to marry without seeing the woman. However, mitzva bo yoser m'bishlucho applies to the woman as well since she helps the man fulfill his mitzvah of peru u'rivu. You see the Ran holds like the Rosh that kiddushin is not a mitzvah but mitzva bo yoser m'bishlucho still applies.
Rambam
The Rambam (Hilchos Ishus 1:2, Sefer HaMitzvos 213) states clearly that kiddushin is a mitzvah. He counts the mitzvah of peru u'rivu and kiddushin as 2 mitzvos. According to the Rambam, if one wants to create a relationship with another person, it is a mitzva to do it through the mechanism called kiddushin.
The Kesef Mishna quotes Rav Avraham ben HaRambam who explains that the Rambam holds kiddushin and nisuin is one mitzvah. Kiddushin is considered the beginning of the mitzvah and nisuin is the end of the mitzvah. The KEsef Mishna is m'dayeik from the way the Rambam lists the mitzvah in his header. He writes "the mitzvah of nisuin through kiddushin and kesuva". I think you can add a diyuk from the sefer hamitzvos where the Rambam writes "it is a mitzvah livol isha through kiddushin". You see the entire process is the mitzvah.
You can contrast this with the Sefer HaChinuch who writes the mitzvah is to be m'kadeish an isha through kesef,shtar, biyah. He makes no mention of nisuin.
Rosh
The Rosh in Kesuvos (perek 1 siman 12) says kiddushin is not a mitzvah. He says if one wants to be m'kayeim peru u'rivu yuo can do it through a pilegesh, you don't need to get married. In fact it's not even a hechsher mitzvah like shechitah. By shechitah, you can't eat without shechitah, but you don't need kiddushin to be m'kayeim perui u'rivu
Nafka Mina
1) Birchas Eirusin
How do you understand the nature of the beracha on kiddushin? The Rosh writes it is not a birchas hamitzvah but a birchas hashevach. That is why the loshon of the beracha is not comparable to a regular birchas hamitzvah. We don't say "asher kidishanu l'kadesj isha". Plus we mention the issur arayos. We never find that we mention the issur in a birchas hamitzvah. Finally, that is way the beracha is said after kiddushin and not before, there is no requirement for oveir l'asiyason since it is only a birchas hashevach.
The Rambam (Ishus 3:23) says the beracha must be before the mitzvah due to oveir l'asiyason. In fact if you omit the beracha you can't say it after the kiddushin.
2) Mitzva Bo Yoser M'bishlucho
According to the Rambam we understand why the gemara says it's better to do kiddushin yourself. Since it's a mitzvah it is better to do it yourself. According to the Rosh why is it better? In fact the Netziv (Hemek Shailah Siman 165) says mitzva bo yoser m'bishlucho would apply to a hechsher mitzvah but only a hechsher mitzvah mentioned in the Torah (like Kovod Shabbos). A hechsher mitzvah not mentioned in the Torah does not have this requirement. Since kiddushin isn't mefurash b'kra there is no mitzva bo yoser m'bishlucho by kiddushin if it is only a hechsher mitzvah. (He uses this as a rayah against the Rosh).
You can answer the Rosh with a Ran in Kiddushin (Reish Perek 2). The Ran says mitzva bo yoser m'bishlucho applies to a man because it is assur to marry without seeing the woman. However, mitzva bo yoser m'bishlucho applies to the woman as well since she helps the man fulfill his mitzvah of peru u'rivu. You see the Ran holds like the Rosh that kiddushin is not a mitzvah but mitzva bo yoser m'bishlucho still applies.
Tuesday, September 29, 2009
Mazal Tov
Mazal Tov to myself (are you allowed to wish yourself Mazal Tov), my wife and my six children on the birth of our new daughter/sister. Our new daughter, Avigayil was born this past Friday morning. Boruch Hashem both mother and daughter are healthy and doing fine and they made it home for Yom Kippur.
We now have 5 girls and 2 boys-hopefully by the time they are in the parsha the shidduch crisis will be solved and the boys side will pay for everything :-) .
Hopefully, we should only see nachas from her as well as all our other children.
We now have 5 girls and 2 boys-hopefully by the time they are in the parsha the shidduch crisis will be solved and the boys side will pay for everything :-) .
Hopefully, we should only see nachas from her as well as all our other children.
Monday, September 14, 2009
Parshas Netzavim/VaYeilech: Blowing Shofar on Rosh HaShana
The Shulchan Aruch paskens that we don't blow shofar on Rosh Hashana when it falls out on Shabbos (as it does this year). The reason the gemara gives is because we are afraid that one might carry the shofar in reshsus harabim and be oveir on the d'oreisa of hotza'ah. (This same reason applies for reading the megillah and taking the lulav). The question is, what happens if someone goes ahead and does blow shofar on Shabbos? Is he at least yotzei the mitzva d'oreisa of blowing shofar? It's understood that chazal made a gezeirah not blow shofar, but l'chorah the chiyuv d'oreisa still exists and if so why would one not be yotzei m'd'oreisa.
Nafka Mina
Before I get into the lomdus, there are actually several nafka mina to this question.
1) The Aishel Avraham in Siman 600 (and also brought in the otzar meforshim peirush on the side of the shulchan aruch in Siman 588 says that if one blew shofar on Shabbos Rosh Hashana then one does not make the Shehechiyanu on the second day. Since the beracha was made the first day there is no need to repeat it.
2) The Chachmas Shlomo (Siman 588) discusses a case where someone blew 2 set sof tekia teruah tekia but not that third set. This person is in limbo. .He was oveir on the d'rabanan of blowing shofar on Shabbos but he was not yet m'kayeim the d'oreisa since m'd'oreisa you need to blow 9 sounds-3 sets. The question is do we allow this person to blow 1 more set to be yotzei m'd'oreisa.
3) Chazal never made the takana in Yerushalayim in front of beis din. There is a machlokes rishinim what kind of beis din you need. The Rif paskins that all you need is a beis din of 3 people and you can blow in Yerushalayim. In 1881 (Rosh Hashana 5642) Rav Shlesinger wanted to blow shofar on Shabbos in Yerushalayim. In the sefer Ir Hakodesh V'HaMIkdash, Rav Tukitchinsky discusses the 2 sides of the issue. He writes that initaially Rav Shlesinger had 23 rabbonim on his side but in the end most of them backed out and only a few rabbonim blew shofar. He also quotes the gabbai of Rav Shmuel Salant who said that Rav Shmuel Salant would not pasken it is muttar but he wouldn't be mocheh against someone who went to hear the shofar. Fimally, Rav Tukitchinsky quotes the Aderes who said in 1903 that it was a shame Rav Shlesinger is not around to blow shofar on Shabbos since he would go behind a wall to hear him.
This leads us to the 3rd nafka mina. What would happen if someone blew shofar on Shabbos illegally-could one go hear the shofar and be m'kayeim a mitzva m'd'oreisa.
The Lomdus
The lomdus is very simple. In fact Rav Elchanan in Kunteres Divrei Sofrim Siman 3 discusses this issue. When chazal were okeir a mitzva m'd'oreisa b'shev v'al ta'aseh were they okeir it completely and therefore even if you do the mitzvah m'd'oreisa you don't get a mitzvah or do we say that the mitzvah d'oreisa still exists. It's just that now I have 2 competing mitzvos. On the one hand I have the mitzvah to blow shofar. On the other hand I have the mitzvah to listen to the chachamim. Which mitzvah takes precedence? Rav Elchanan explains that we say "shev v'al ta'aseh", don't do anything. In this case it would mean don't blow the shofar.
Rav Elchanan has a few nafka mina and rayas from various gemaras for each tzad. ayin sham.
Rabbi Akiva Eiger seems to take a clear stand on this issue. In derush v'chiddush (ma'areches 8) he says that if you blow shofar on Shabbos you get a mitzva m'd'oreisa.
Rav Tzvi Pesach Frank (Har Tzvi Siman 88 and Mikroei Kodesh) asks that there is a Tosafos in Sukkah (3a) against Rabbi Akiva Eiger. If one sits ina sukkah and the table is in the house, you are not yotzei. Tosafos says you are not yotzei even m'd'oreisa because the rabanan have the ability to be okaeir the d'oreisa and you are not m'kayeim any mitzvah. The Ran disagrees with Tosafos and holds you are yotzei m'd'oreisa, but al kol panim, how can Rabbi Akiva Eiger go against a Tosafos. (Interestingly, Rav Elchanan never mentions this Tosafos). Rav Tzvi Pesach Frank wants to learn that the m'kor for Rabbi Akiva Eiger is from a different gemara and Tosafos is learning like a shitta that we don't pasken like (ayin sham).
I found in the journal HaPardes from 1960 that the Siridei Eish discusses this as well. He asks on Rav Tzvi Pesach Frank that we pasken like Tosafos. Therefore, whatever answer you give for Rabbi Akiva Eiger has to address Tosafos since that is how we pasken. He answers that there is a difference between sukkah and shofar. By the case of sukkah, chazal possuled the sukkah itself. In such a case we would say that you are not yotzei m'd'oreisa since you are not sitting in a sukkah. By shofar, they didn't possul the shofar but rather invalidated your act. However, your act of blowing teh shofar might not be good m'd'rabanan but it is good m'd'oriesa.
In Mikroei Kodesh, Rav Tzvi Pesach Frank does seem to mention this teretz but he doesn't stick with it.
Also, if you look in the Rishimus Shiurim on Sukkah, the Rav learns the Rambam not like the Siridei Aish. He is m'dayeik in the Rambam that it is not a p'sul in teh cheftzah shel sukkah but teh ma'aseh is not a mitzvah,
Nafka Mina
Before I get into the lomdus, there are actually several nafka mina to this question.
1) The Aishel Avraham in Siman 600 (and also brought in the otzar meforshim peirush on the side of the shulchan aruch in Siman 588 says that if one blew shofar on Shabbos Rosh Hashana then one does not make the Shehechiyanu on the second day. Since the beracha was made the first day there is no need to repeat it.
2) The Chachmas Shlomo (Siman 588) discusses a case where someone blew 2 set sof tekia teruah tekia but not that third set. This person is in limbo. .He was oveir on the d'rabanan of blowing shofar on Shabbos but he was not yet m'kayeim the d'oreisa since m'd'oreisa you need to blow 9 sounds-3 sets. The question is do we allow this person to blow 1 more set to be yotzei m'd'oreisa.
3) Chazal never made the takana in Yerushalayim in front of beis din. There is a machlokes rishinim what kind of beis din you need. The Rif paskins that all you need is a beis din of 3 people and you can blow in Yerushalayim. In 1881 (Rosh Hashana 5642) Rav Shlesinger wanted to blow shofar on Shabbos in Yerushalayim. In the sefer Ir Hakodesh V'HaMIkdash, Rav Tukitchinsky discusses the 2 sides of the issue. He writes that initaially Rav Shlesinger had 23 rabbonim on his side but in the end most of them backed out and only a few rabbonim blew shofar. He also quotes the gabbai of Rav Shmuel Salant who said that Rav Shmuel Salant would not pasken it is muttar but he wouldn't be mocheh against someone who went to hear the shofar. Fimally, Rav Tukitchinsky quotes the Aderes who said in 1903 that it was a shame Rav Shlesinger is not around to blow shofar on Shabbos since he would go behind a wall to hear him.
This leads us to the 3rd nafka mina. What would happen if someone blew shofar on Shabbos illegally-could one go hear the shofar and be m'kayeim a mitzva m'd'oreisa.
The Lomdus
The lomdus is very simple. In fact Rav Elchanan in Kunteres Divrei Sofrim Siman 3 discusses this issue. When chazal were okeir a mitzva m'd'oreisa b'shev v'al ta'aseh were they okeir it completely and therefore even if you do the mitzvah m'd'oreisa you don't get a mitzvah or do we say that the mitzvah d'oreisa still exists. It's just that now I have 2 competing mitzvos. On the one hand I have the mitzvah to blow shofar. On the other hand I have the mitzvah to listen to the chachamim. Which mitzvah takes precedence? Rav Elchanan explains that we say "shev v'al ta'aseh", don't do anything. In this case it would mean don't blow the shofar.
Rav Elchanan has a few nafka mina and rayas from various gemaras for each tzad. ayin sham.
Rabbi Akiva Eiger seems to take a clear stand on this issue. In derush v'chiddush (ma'areches 8) he says that if you blow shofar on Shabbos you get a mitzva m'd'oreisa.
Rav Tzvi Pesach Frank (Har Tzvi Siman 88 and Mikroei Kodesh) asks that there is a Tosafos in Sukkah (3a) against Rabbi Akiva Eiger. If one sits ina sukkah and the table is in the house, you are not yotzei. Tosafos says you are not yotzei even m'd'oreisa because the rabanan have the ability to be okaeir the d'oreisa and you are not m'kayeim any mitzvah. The Ran disagrees with Tosafos and holds you are yotzei m'd'oreisa, but al kol panim, how can Rabbi Akiva Eiger go against a Tosafos. (Interestingly, Rav Elchanan never mentions this Tosafos). Rav Tzvi Pesach Frank wants to learn that the m'kor for Rabbi Akiva Eiger is from a different gemara and Tosafos is learning like a shitta that we don't pasken like (ayin sham).
I found in the journal HaPardes from 1960 that the Siridei Eish discusses this as well. He asks on Rav Tzvi Pesach Frank that we pasken like Tosafos. Therefore, whatever answer you give for Rabbi Akiva Eiger has to address Tosafos since that is how we pasken. He answers that there is a difference between sukkah and shofar. By the case of sukkah, chazal possuled the sukkah itself. In such a case we would say that you are not yotzei m'd'oreisa since you are not sitting in a sukkah. By shofar, they didn't possul the shofar but rather invalidated your act. However, your act of blowing teh shofar might not be good m'd'rabanan but it is good m'd'oriesa.
In Mikroei Kodesh, Rav Tzvi Pesach Frank does seem to mention this teretz but he doesn't stick with it.
Also, if you look in the Rishimus Shiurim on Sukkah, the Rav learns the Rambam not like the Siridei Aish. He is m'dayeik in the Rambam that it is not a p'sul in teh cheftzah shel sukkah but teh ma'aseh is not a mitzvah,
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