[KollelH blog] 7/25/2012 12:19:00 PM

The Aveilus Of Tisha B'Av Week

One may not perform several actions during the week in which Tisha B'Av falls. This is referred to as shavua she'chal bo. For example, one may not take a haircut or wash his clothing (Ashkenazi Jews are forbidden in these actions prior to the week of Tisha B'Av in accordance with the ruling of the Ramah). The Mechaber (Shulchan Aruch Orach Chaim 551: 4) writes that in a year when Tisha B'Av falls on Shabbos and is pushed off to Sunday (as it does this year) there is a machlokes as to whether there are any prohibitions during the week before Tisha B'Av. The Mechaber seemingly sides with the view that there are no halachos of shavua she'chal bo in such circumstances.

Many Achronim explain that the dispute is based on the understanding behind the establishment of the fast of Tisha B'Av. The Gemara in Ta'anis 29a says that the Beis HaMikdash was lit close to the end of the ninth day of Av and continued burning throughout the tenth day of Av. Reb Yochanan said, "Had I been in the generation when Tisha B'Av was established, I would have established it on the tenth day of the month since the majority of the Beis HaMikdash burnt on that day." The Gemara says that the Rabbanan who established the fast on the ninth day of the month did so because they felt that it was better to establish the fast day on the day of the troubles' onset.

Based on this, they explain that the first opinion holds that there is no shavua she'chal bo in a year when Tisha B'Av falls on Shabbos and is pushed off to Sunday because the Rabbanan only argued that, when possible, the fast should be established at the onset of the troubles. However, when it is not possible to fast on the ninth day of Av (i.e., when it falls out on Shabbos), they would agree with Reb Yochanan's view that the fast should take place when the majority of the Beis HaMikdash burnt – namely on the tenth day of Av. Based on this, the week that precedes Tisha B'Av is not the week when the fast falls out, since in a year like this year we fast on the tenth day of the month (Sunday) – which is the beginning of the following week.

The other opinion holds that the halachos of shavua she'chal bo do apply to the week prior to Tisha B'Av, even when it falls on Shabbos, because they opine that the Rabbanan hold that the fast should always be on the ninth day – even when one cannot fast on that day. The reason why we fast on Sunday is merely to make up for not being able to fast on Shabbos. However, the fast day is primarily on the ninth day. Hence all the halachos of shavua she'chal bo apply, since Tisha B'Av falls out during that week – namely on Shabbos.

This permits us to explain another machlokes, the one between the Mechaber and the Ramah (554:19) regarding whether one must keep aveilus betzina (hidden aveilus, i.e. marital relations) on Tisha B'Av that falls on Shabbos. The Mechaber says that one may have marital relations on the ninth day of Av when it falls out on Shabbos. The reason: The fast was primarily established to be on the tenth day, and the ninth day is not a fast day at all. Therefore, the Mechaber holds that one need not keep any aveilus betzina on the ninth day. But the Ramah argues that this is forbidden and that one must keep aveilus betzina since the Rabbanan established Tisha B'Av to always be on the ninth day of Av – even when one cannot fast.

There is one problem, however, with this suggestion. Why does the Mechaber say that, when Tisha B'Av falls on Shabbos and is pushed off to Sunday, there is a leniency regarding one making a bris milah? In siman 559:9, the Mechaber writes that one who makes a bris milah on a Sunday Tisha B'Av (that really fell on Shabbos) does not have to fast and may wash his body. In contrast, one must fast and may not wash his body if making a bris milah on the regularly scheduled day of Tisha B'Av. If we explain that the Mechaber is of the opinion that when Tisha B'Av falls out on Shabbos and is pushed off to Sunday (making Sunday the actual day of the fast, and thus Tisha B'Av didn't fall in the prior week), permitting one to have marital relations on Shabbos, why is there any leniency or discrepancy regarding the fast on Sunday?

The sefer, Harirai Kedem, suggests a different understanding behind the machlokes. He suggests that the machlokes as to whether aveilus betzina applies on Shabbos Tisha B'Av is dependent on a different point. The Ramah, who says that it applies, holds that Tisha B'Av is in essence always on the ninth day and therefore aveilus betzina applies. The Mechaber agrees to this, but holds that there can only be one day that aveilus of Tisha B'Av is observed. And since we cannot fully observe the aveilus on Shabbos, we observe it only on Sunday.

Both sides of the machlokes regarding whether there are halachos of shavua she'chal bo the week before Tisha B'Av agree that Tisha B'Av is essentially on Shabbos. However, the opinion that holds that there are no halachos of shavua she'chal bo believes that the halachos applying to the week of Tisha B'Av are connected to the aveilus of Tisha B'Av – similar to a prelude to the aveilus of Tisha B'Av. So even though the actual day of the fast is primarily on Shabbos, and since aveilus is not observed on Shabbos, the week that Shabbos falls out also does not have any halachos of aveilus.

For questions or comments, e-mail RabbiRFuchs@gmail.com.

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Posted By KH to KollelH blog at 7/25/2012 12:19:00 PM

[KollelH blog] maasai

Preempting The Death Penalty

In this week's parshah the Torah writes about a prohibition on killing a murderer prior to his trial. As the pasuk says: "…v'lo yamus harotzeach ad amdo lifnei haeidah lamishpat -- … so that the murderer will not die until he stands before the assembly for judgment" (Bamidbar 35:12). The same rule applies to anyone who commits an aveirah that is punishable by death; no one is permitted to kill him prior to his trial in beis din, including the witnesses that warned him and witnessed the aveirah. The Sefer Hachinuch (mitzvah 409) writes that if one kills a transgressor prior to his trial, he is regarded as a murderer.

Anyone who performs any aveirah l'hachis (a transgression to spite Hashem, not because of temptation) is rendered a mummar l'kol haTorah. The Rush (Moed Katan 3:59) says that one who is warned by two witnesses that the action he is about to perform is prohibited and punishable by death and responds that he will commit the aveirah despite the warning, attains the status of a mummar l'hachis. The reason is this: one performing the aveirah because of temptation would not do so after being warned that his life is on the line. Rather, we can assume that he is acting to spite Hashem.
Reb Chaim Ozer Grodzensky (Achiezer 3:53) writes that he discussed the following question with his wife's grandfather, Reb Yisroel Salanter, the gaon ohr yisrael: the Gemara (Avodah Zarah 26b) says that one may kill a mummar l'hachis. (This is brought down in several places by the Rambam, including Rotzeach 4:10, and in the Shulchan Aruch, Choshen Mishpat 425:5.) This is known as "moridin v'eino malin – throw him into a pit and do not save him." The view of both the Rambam and the Shulchan Aruch is that if possible one should publicly kill the mummar with a sword. The Rush (Teshuvos 32:4) says that one should only kill via a gramma (indirectly), i.e., throw him into a pit and remove the ladder.
Question: How can the Torah say that we cannot kill a murderer or any transgressor until after his trial in beis din, despite the fact that he was warned in front of witnesses? After all, according to the Rush the transgressor has the status of a mummar l'hachis (since he is not acting out of temptation), thereby permitting anyone to kill him as per the halacha of moridin v'eino malin.
Reb Chaim Ozer suggested two answers, but believed that the question demands more analysis. His first suggestion is that the pasuk is teaching us that although one is permitted to kill the individual who sinned by means of moridin, the Torah nevertheless prohibited killing him in this case until after his trial in beis din. However, Reb Chaim Ozer rejects this answer for several reasons. One reason: Why does the Chinuch say that one who kills the sinner is regarded as a murderer? Since he could kill him from the halacha of moridin, he should not be considered a murderer. The Chazon Ish (Yoreh De'ah 2:17) maintains that the halacha of moridin only applies when the sinner cannot be tried in beis din due to technical problems, i.e., no witnesses. Therefore, in a case to be brought in beis din one may not apply the halacha of moridin.
The second solution is that the pasuk is referring to a scenario in which we know that the individual did teshuvah. Therefore he can no longer be killed under the halacha of moridin. However, teshuvah does not remove the death penalty from beis din. Hence, the Torah says that we should wait until he is found guilty at trial before killing him.
I would like to suggest that the question does not start .I was scared to say that I learned the Rush differently than Reb Chaim Ozer and Reb Yisroel Salanter. But, Baruch Hashem, I found afterwards that the Chazon Ish (Yoreh De'ah 2:12) learns the Rush as I did. I believe that the Rush is being taken out of context. The Rush is discussing the Mishnah that says that there is no aveilus for people who are killed by beis din. The Rush explains that this is because since they were warned that their life was on the line but nevertheless sinned, they are obviously not acting out of temptation; thus, they are comparable to a mummar l'hachis. I think that the Rush never meant to say that anyone who transgresses after being warned is a mummar l'hachis regarding the halacha of moridin; rather the Rush is saying that regarding aveilus we consider him a mummar, comparable to a mummar l'hachis – whereby aveilus does not apply.
With this understanding of the Rush the question does not start because the Rush never said that we could apply the halacha of moridin to one who sins after being warned with his life. Therefore it is clear why the Torah commanded us not to kill a sinner until after his day in court – since he cannot be killed before then. And one who does kill him prior to his day in court will be considered a murderer.
For questions or comments, e-mail RabbiRFuchs@gmail.com.

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Posted By KH to KollelH blog at 7/19/2012 11:53:00 PM

One can easily possess wisdom, but the wisdom must possess him.

A NEEDY person, is a pauper no matter how much money he posseses. One who (feels he) needs less, is enriched just with life's n

One who offers honor must truly be an honored man to give some away. One who is looking to receive honor obviously lacks it.

[KollelH blog] Korach

Shelichus

The Gemara in Kiddushin 41b derives from a pasuk in this week's parshah the concept of shelichus (acting on one's behalf). The pasuk says, "kein tarimu gam atem terumas Hashem – so you too shall remove the terumah of Hashem." The Gemara explains that the word gam (too) is superfluous; thus we draw from this that another person may remove terumah for you on your behalf.

The Gemara in Baba Metzia 22a says that, based on this pasuk, we learn another halacha regarding shelichus. The Gemara says that just as an action that you perform is with your knowledge, so too is it with your knowledge when your agent acts on your behalf. One cannot be your shaliach unless you know about it.

The Kitzos Hachoshen (105:1) asks the following fundamental question (preceded by pertinent information): There is another manner – referred to as zicheya – whereby one can act on another person's behalf. Regarding this other form, the Gemara says that one may act on another's behalf even without the knowledge of the other person. This is called zachin l'adam shelo befanav – one may acquire for another if it is beneficial for him, even if he does not know it. Several Rishonim opine that the mechanics behind this form of acting on another person's behalf works with shelichus. Rashi in Gittin 9b says that whenever one is acting on another person's behalf, it is considered as if he was appointed to be a shaliach (to do that action) for the sender. This is called zicheya mi'din shalichus. The Kitzos asks: How can zicheya work without the individual's knowledge if it is working via the mechanics of shalichus, and shelichus requires the knowledge of the one for whom you are acting?

The Kitzos suggests that this is the reason that the other Rishonim disagree and say that zicheya is not mi'din shelichus. They say that it works instead through the halacha of yad, the fact that one's hand acquires for him. The Kitzos goes so far as to say that even the Rishonim who say that that zicheya is mi'din shalichus do not mean that it is considered as if one made him an agent; rather, it is a gezeiras hakasuv (it works just as a shaliach works).

One could argue with the entire premise of the Kitzos. We must look at the context in which the Gemara in Baba Metzia was referring to, namely that one must be aware that there is an agent working on his behalf. The Gemara there was discussing the sugya of yi'ush shelo midas – relinquishing ownership of a lost object without the knowledge that it is lost. Rashi, at the beginning of the sugya, writes that the whole sugya is only addressing a scenario in which one would probably give up hope when he learns that the item is missing. In a scenario whereby we know for certain that one would give up hope, there would not be any machlokes and all would agree that it now works – prior to the individual actually knowing.

The Gemara brings a proof from the following Mishnah: In a case of one who takes off terumah for his friend without his friend's knowledge, there are scenarios in which it works and those in which it is not considered as if terumah was removed. If the owner, upon hearing that his fellow removed terumah for him, responds in a manner that reveals that he is pleased, the terumah is then valid. But if his response tells us that he is upset about this, the terumah is not valid. The Gemara says that this proves that even though he did not know at the time, it is valid retroactively since he later knew about it. The same rule should apply regarding the relinquishment of ownership of a lost item.

The Gemara answers that there is no proof from this Mishnah, since the entire Mishnah is referring to a case where the owner had previously made him his shaliach.

The Gemara compares the knowledge required for yi'ush to that of a shaliach. The parallel dictates that just as if one does not know that his item is lost, even though he will probably relinquish his ownership when he learns that it is lost, we do not consider it as if he gave up hope. Similarly, even if one will probably be happy to learn that his fellow separated terumah for him, it is not considered as if he made him his shaliach since he does not presently know.

However, the concept of zicheya is not applicable when we can only assume that the individual will "probably" want the item. We apply zicheya when we are certain that the individual for whom we are acting will be pleased with the outcome. Under these circumstances we would even say that one would relinquish his rights immediately. Therefore we can say that even shelichus would work when we are certain that one would want another to act on his behalf. We can also say that zicheya works via the mechanics of shelichus, even though one is unaware at the time that someone is acting on his behalf.

For questions or comments, e-mail RabbiRFuchs@gmail.com.

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Posted By KH to KollelH blog at 6/21/2012 12:16:00 AM