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by Chaim Markowitz, published: Thu 27 Feb 2014 05:08:00 PM CET.
Chayei Sorah: Paying a Shadchan
This week I spoke about the question of paying a shadchan. Specifically, how much do you pay a shadchan when the chassan is from one city which pays higher rates and the kallah is from a city which pays lower rates. The main point to understand is that a shadchan has a din of a hired worker (a poeil) and paying a shadchan is a shailah in Choshen Mishpat.
The Panim Meiros discusses this question and he understands that m'tzad the chassan, the shadchan is working for him in the city of the kallah and m'tzad the kallah, the shadchan is working for her in the city of the chassan. Based on a Yerushalmi in the beginning of Bava Metzia Perek 7, he says you pay based on where the poeil did the work. Therefore, the kalllah would pay based on the rates in the chassan's city and the chassan would pay based on rates in the kallah's city.
However, there is an exception. If the shadchan and chassan live in the town with cheaper rates, the chassan could argue that he hired the shadchan based on their city rates and therefore he pays the cheaper rate.
There is a machlokes haposkim in a case where the chassan from a higher rate city goes to hire the shadchan from a lower rate city to find a shidduch in the higher rate city. According to the Yerushalmi the socheir can argue I went to the lower rate town to higher cheaper work. I don't care that you are working in the higher rate town-to pay higher rates I would have hired a guy from my town.
The Panim Meiros says by a shadchan you don't say that since you davka wanted that shadchan-his work is qualitatively better. Unlike a poeil-a worker is a worker. The Minchas Elazer argues and says you can pay cheaper rates. Even in the yerushalmi you can argue some workers are better. We don't say that and pay cheaper rates.
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Parshas Lech Lecha: Hatafas Dam Bris
The Rambam (Hilchos Mila 1:7) paskens that both a ger who had a mila as a non-Jew and a child born with a mila rquires hatafas dam bris. The m'kor for this halacha seems to be a gemara in Shabbos DAf 135 which says that the koton born with a mila rquires hatafas dam bris because of a safeik orlah kevushah-we are afraid the orlah is hidden and teh child is really an oreil. There are a number of questions asked on this Rambam.1) The Minchas Chinuch (Mitzvah 283) says that the Rambam paskens in Hil Teruma that a chikd born with a mila can eat terumah. The question is why. If we are afraid that he is really an oreil, so we should be machmir m'safeik and not let him eat terumah.2) The Rambam in Hil Mila Perek 3:6 writes that both the ger and koton do not make a beracha on the hatafas dam bris. I can understand that we don't make a beracha on the koton since the whole reason for the hatafas dam bris is due to a safeik orlah and m'safeik we don't make a beracha. However, the reason for the ger can't be because of safeik orlah kevusha-the ger had a real bris. The only reason he needs hatafas dam bris is because the milah was done when he was a non Jew. Why wouldn't he require a beracha? 3) The Kehillas Yaakov in Shabbos asks that the gemara in Yevomos 71a learns that a father who has a katan sh'nolad mohel can't eat the korbon pesach (until the hatafas dam bris is done). Why is this different than teruma where we say the katan can eat terumah.4) The Minchas Chinuch also asks, if we are choshesh for orlah kavusha, how does hatafas dam bris solve this problem. All you are doing is drawing some blood-you are not cutting anything away. There are a few mehalchim to answer these questions. Below is the mehalach of the Mishkanos Yaakov (Y.D. Siman 63)He writes that b'emes there is a machlokes hasugyas between the genara in Yevomos 71 and Shabbos 135. The gemara in Yevomos brings the shitta of Rabbi Akiva that we learn from a posuk that both a ger who had a mila as a non Jew and a father who has a katan sh'nolad mohel can't eat the korbon pesach. If the reason why the koton needs hatafas dam bris is because of safeik orlah kevushah, why do we need a limud for this? It is pashut-the child is a safeik oreil and m'meilah you can't eat the korbon Pesach. Therefore, you have to say that according to Rabbi Akiva, the reason for hatafas dam bris isn't because of safeik orlah kevusha but rather it is a din in the mitzvas mila-part of the mitzva is a requirement to do hatafas dam bris. In fact the zohar says there are 3 parts to mila, the mila, p'riah and hatafas dam.The gemara in Shabbos argues on Rabbi Akiva and holds the reason for a katan is because of orlah kevusha. Furthermore, According to the gemara in Yevamos, the reason both a ger and a koton need hatafas dam bris is the same reason-both are missing the mitzvah of hatafah of dam bris. The ger had a ma'aseh mila but there was no hatafas dam l'shem bris. We can now say that the Rambam paskens like the sugyah in Yevomos and hatafas dam bris is itself a mitzvah . (unlike the Rif and Rosh who hold the reason is orlah kevusha). We can answer the questions above.1) The issur of eating teruma is only for an oreil. Even though the koton is lackning the mitzvah of hatafas dam bris, he is still not considered an oreil. (ayin R' Chaim al hashas that says the same idea). Since he is not an oreil he can eat terumah. [L'chorah you have to say that the Mishkanos Yaakov understands that the shem oreil goe saway when the orlah is removed or is not present. Since this koton does not have an orlah he is not considered an oreil even though he is missing a chelek of the ma'aseh mitzva of mila (i.e. the hatafas dam).2) The reason we don't make a beracha has nothing to do with safeik berachos but it is because although the hatafa is a chelek of the mila, the chachamim were not misakein a beracha on the hatafa by itself. Furthermore, the Mishkanos Yaakov points out, in Mila 3:6 the Rambam mentions an androgonus doesn't make a beracha on hatafas since it is a safeik beracha. We see that koton and ger must be a different reason.3) The Kehillas Yaakov says that the issur of bringing the korbon pesach does not depend on the shem oreil, but rather on whether the mitzva of mila was completed. The proof is that you can't bring a korbon pesach if your slave doesn't have a mila-even though you are not an oreil. Therefore, since this koton still requires hatafas dam bris the mitzvah of mila has not been completed and you can't bring the korbon pesach.4) Since the hatafah isn't there to remove a safeik, there is no need to do any cutting of teh skin, and letting out blood is enough.Other achronim (Imrei Moshe, Mishnas Ya'avetz) point out that the Yerushalmi seems to work well with the sevara of the Mishkanos Yaakov and thsi coulds also be the m,'kor for the Rambam.Both the Kehillas Yaakov and Mishnas Ya'avetz don't like the fact that the Mishkanos Yaakov made this into a machlokes hasugyos between the gemara in Shabbos and Yevamos. They both have a mehalech which puts the sugyos together, but ain kan mokom l'harich. ayin sham.
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I have been toying with the idea of restarting my blog and I have finally decided to do it.
As in the past, this blog will mostly be a write up of my weekly parsha chabura that I give over in shul every Shabbos. In the chabura I discuss a halachic or lomidshe topic that is based on that week’s parshah.
Comments are always welcome but I don’t guarantee that I will always respond.
I hope to put up the first post shortly.
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Parshas Mattos:Kashering Keilim by Midyan
The Ramban asks why did B'nei Yisroel only get the mitzvah of kashering the keilim by Milchemes Midyan and not previously after Milchemes Sichon V'Og.
The Ramban answers that during war all issurim are muttar. We learn this from the possuk in Va'eschanan "U'batim mileim kol tuv". The gemara in Chullin 17a writes that even chazir is muttar during battle. Therefore, by Milchemes Sichon V'Og the b'nei Yisroel were allowed to use the pots they took. However, the Ramban explains that this heter only applies by kibush Eretz Yisroel. Milchemes Midyan was not kibush EY (ayin http://www.divreichaim.blogspot.com/
for the Rogotchover's mehalech in being magdir this war). Therefore, issurim were assur and mimeilah they needed to be told to kasher the pots.
L'ma'aseh the Ramban is l'shitaso in Parshas Va'Eschanan. There the Ramban explains that the heter b'sha'as milchama applies to everyone and even after the war the spoils of war are muttar even if they are assur (orlah, chazir). However, the Rambam disagrees. The Rambam paskens (Melachim 8:1) that this heter only applies to the army and b'sha'as hadechak when they are hungry. (In fact the Chasam Sofer in Chullin equates the heter of issurim to the heter of yifas toar-i.e. dibrah torah kneged yetzer hara). The Minchas Chinuch in Shoftim discusses this machlokes Rambam and Ramban.
According to the Rambam how do you answer the Ramban's kasha-why didn't the get a mitzvah of kashering keilim by Sichon V'Og.
There are several ways to answer this kasha.
1) Daas Zikeinim writes that Sichon V'Og took place in the fields so there were no keilim. Midyan took place in the cities where they took keilim from the houses.
2) Several Achronim (Lev Aryeh in Chullin 17a and Tzlach in Chullin) write the Rambam is l'shitaso. In Pesachim there is a machlokes if ta'am k'ikar is min hatorah or midirabanan. Rabbi Akiva holds it is min haTorah and the rayah is that we had to kasher keilim of Midyan. The Chachamim hold klei midyan are no rayah since that whole sugyah is a chiddush cause keilim were nosein taam lifgam. The Rambam paskens ta'am kikar is d'rabanan so he holds klei midyan were a chiddush. Once you say it's a chiddush then you can't ask why davka by Midyan they got the mitzvah-the whole thing is a chiddush.
The Achronim want to take it a step farther and say that the Ramban holds ta'am kikar is d'oreisa, and mimeila he has to hold by milchama that all issurim are muttar in order to answer his kasha. However, I saw the Chasam Sofer holds the Ramban says ta'am kikar is dirabanan.
3) The Chavtzeles Hasharon doesn't like this pshat because the Pri Megadim says that even though the Rambam holds ta'am kikar is dirabanan, nevertheless kashering keilim is d'oreisa. So again why didn't they have the mitzvah by Sichon v'Og.
He answers that the Chazon Ish (OC) writes that Moshe got all the mitzvos at Har Sinai but was not told to tell B'nei Yisroel certain mitzvos until later. Could be this is one of those mitzvos and HKBH decided not to tell B'nei Yisroel until Midyan for some reason only known to HKBH.
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Here is the speech I said today at my son's bris. We named him Michoel Dovid after my mother's father (Michoel) and my father in law's father (Dovid)
There is an interesting aspect of the bris milah that does not get a lot of attentiion. It is brought down that after the bris the minhag is to bury the orlah in the ground. The Ksav Sofer says that the mekor for this minhag is based on a medrash in this weeks Parsha. The Medrash says that when Bilam saw the orlos in the Midbar he said who can stand against klal yisroel who have the bris mila that they bury in the dirt.
Bilam, then went ahead and gave klal yisroel the beracha "Mi mana yaakov K'afar" who can count the dust of Yaakov and the seed of Yisroel.
The Ksav Sofer concludes that frm here is the minhag to bury the orlah in the dirt.
The Avudraham brings a different mekor. He says that the reason we bury he orlah is based on the havtacha that HKB”H made with Yaakov on the way to Lavans house. HKB”H promised Yaakov that his children will be like the dirt of the ground.In truth these 2 mekoros are actualy in sync with each other. There is another medrash in parshas Bamidbar, ( and I would like to thank my father in law for pointing out to me this medrash). The Medrash says that Hahsem promised Avraham that his children will be k’kochvei hashamayim. He promised Yitzchak they will be k’chol hayam. And to YTaakov he promised that they will be k’afar haertz. The medrash then concludes that the havtacha to yaakov was fullfilled b’zman of Bilaam when he blessed B’nei Yisroel "Mi mana yaakov K'afar"
So we see that the m’kor of the Ksav Sofer which is learnt from the possuk "Mi mana yaakov K'afar" is the kiyum of the havtachah of `k’afar haertz. which is the mekor according to the Avudraham. It
would seem then the key to understanding this minhag of burying the orlah in the ground is to understand the beracha of k’afar haertz.
The medrash says that there are 3 characteristics that dirt has that are found in Klal Yisroel. First
of all just like dirt is always stepped on and trampled on so too Klal Yisroel is always stepped on. Second of all just like dirt can never be totally destroyed-as much as you grind up dirt all you are left with is more dirt, so too Klal Yisroel can never be destroyed. And finally jsut like when you water dirt it has the capability to grow and produce so too Klal Yisroel has the capacity to grow and grow.
It is interesting that the first characterisitc is the total opposite and even contradictory to the last 2. How is it possible for something that is constantly being steeped on to a) never be destroyed and b) contine to flourish? The meforshim point out that Yaakov was the prototype of the Jew in golus and the havtacha of k’afar haertz. given to Yaakov was a beracha meant precisely for golus. Even in golus when we are in a matzav of being beaten and stepped on we will still grow.
This is what the medrash is telling us- we are like dirt always being stepped on but we are also
like dirt that even in such a matzav not only do we survive but we also grow.
The question still remains how does this happen? I think the answer comes from the second half
of the possuk. Hashem tells Yaakov "ufaratzta yama vakedma tzofona vnegba" The gemara in Shabbos says that from here we learn one can be zocheh to a "nachalah bli mitzarim" We see from the gemara that the havtacha of k’afar haertz is a havtacha of "nachalah bli mitzarim". It’s a havtacha that klal yisroel has the ability to transcend the limitations of the natural world and go l’ma’leh min hateva. This is precisely why even in golus, in a matzav of k’afar haertz. we are able to survuve and even grow-because we were also blessed with the beracha of "nachlos bli mitzarim"-the ability to go against the natural teva.
I think with this yesod we can now explain why the mila is covered in dirt. We know that a bris
mila takes place on the eighth day. One of the reasons given is that 8 represents l’ma’aleh min
hateva and a bris milah is l’ma’aleh min hatva. I mentioned at the shalom zachor that we see
from the parsha of mei meriva that when the water from the well came b’zechus Miriam, Moshe
had to hit the rock. However, at mei merivah when the water was coming b’zechus Moshe, all he
had to do was speak to the rock. The Chasam Sofer writes that the ma’aleh that Moshe had over
Miriam was his bris milah. The zechus of bris milah allowed Moshe to accomplish more. We see
from here that a bris milah allows one to go l’ma’aleh min hateva.
Furthermore, as we mentioned klal yisroel itself is a nation l’ma’aleh min hateva and the bris
mila is a baby’s entrance into klal yisroel. Not only is it the first mitzvah that will be performed
with this child but also, Rav Elchanan writes that Avraham was the first member of klal yisroel
and he became a memeber through his bris mila. It would seem then that it is only fitting that the
orlah of the mila which represents that aspect of a Yid that allows him to go l’ma’aleh min
hateva and represents that teh child is a member of a nation that is l’ma’aleh min hateva should
be buried in the dirt which is representative of the havtacha to klal yisroel that because they are
l’ma’aleh min hateva not only will they neevr be destroyed in golus but they will also grow in
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