Dash – Choleiv

January 2, 2011

One of the most practical toldot of Dash of choleiv (milking) – at least according to most rishonim.  Defining the exact parameters of the prohibition of milking is not simple.  We begin with a machloket tannaim as to whether or not this is a Torah prohibition at all.  According to the majority position of the chachamim milking is only a rabbinic prohibition.  R. Eliezer disagrees. (Shabbat 95a)

החולב והמחבץ והמגבן כגרוגרת, המכבד, והמרבץ, והרודה חלות דבש

.שגג בשבת – חייב חטאת, הזיד ביום טוב – לוקה ארבעים, דברי רבי אליעזר

.וחכמים אומרים: אחד זה ואחד זה אינו אלא משום שבות

It is an attempt to understand this berayta and to synthesize it with the limitation of dash to things that grown from the ground that generates the complexity of the sugya of choleiv.

After a complicated analysis we come to following positions:

Rashi, Tosafot and Rambam all hold that choleiv is a Torah prohibition.  Rashi and Rambam as a tolda of dash, Rabbeinu Tam as a Toldah of memachek.

Ramban, Rashba, Ritva, Ran, Nimukei Yosef all hold that it is only a rabbinic prohibition.  See here for the mekorot as well as material dealing with gidulei karka.

The mechaber appears to side with the Rambam that it is a Torah prohibtion but the Magen Avraham paskens like the Ramban.  There are a few achronim (see the Divrei Malkiel here) that want to at least use this shita as a leniency and the Emden assumes that choleiv is d’rabanan (see his teshuva here).

The Tzitz Eliezer in a brilliant essay outlines all the various shitot.  You can find his piece here with my emphases added (link).  In this masterful teshuva / article he lays out all of the issues at length and with great clarity.

In addition we addressed the question of choleiv when there is great pain or discomfort.  Here are the basic gemarot, and here you will see the key tosafot from around shas.

These issues are extremely important for religious kibbutzim and nursing mothers.  It is important to note an important language distinction that Hazal make.  Choleiv refers to the removal of milk from a cow and yonek refers to the removal of milk from a woman.  It is taken for granted that the same set of halakhot that apply to one will apply to the other.  I recognize the problematics of that fact.

The question that is often asked by nursing mothers who are expressing is how to do this on Shabbat.  This is not a simple issue as it may be a d’orayta issue.  If we take the mechaber as agreeing with the Rambam then there is no way to save the milk that is expressed.  Only by accepting the minority read of the Emden, Magen Avraham and Ramban can we permit a women to save the milk that is expressed on Shabbat.

This is only in a case where the baby no longer needs that milk.  That is to say that she is expressing to relieve her own discomfort but the baby has no real need for the milk.  If the baby needed the milk then it would be possible to even permit the d’orayta for the sake of the baby.

Here are the four shiurim that I gave on this topics:

Choleiv – setting out gemarot and rishonim

Choleiv b’makom tzaar

Choleiv l’maaseh – Yaavetz Divrei Malkiel – Process of Psak

Tzitz Eliezer on Choleiv

 

 


Hilkhot Shabbat – melacha she-eina tzricha l’gufa

November 16, 2010

In this shiur we worked through some of the basic sugyot dealing with the elusive and some times slippery concept of melacha she-eina tzricha l’gufa. We began with a process of triage in an attempt to drill down to a sugya that isolates our concept.  We noted that in a sugya in which the debate between R. Yehuda and R. Shimon is quoted to answer an apparent contradiction, we will not find definitions.  The gemara is there bringing the concept and assuming that we know what it means (see 105b, tearing in anger and 11b, the zav with his pouch).

In addition there are several sugyot in which the concept of mekalkel is lurking behind the position of R. Yehuda. All the gemarot that deal with digging the hole for the dirt (hagiga 10a/b, shabbat 73b & beitza 8a) can be read as really about mekalkel (as Rashi and Rabbenu Channanel in fact do).  The sugya on shabbat 31b that deals with extinguishing the fire for the sake of the:lamp, the wick or the oil also ultimately shifts into the question of destructive activity based on Rashi’s read of Ulla.

The headquarters of this concept seems to be located on 93a/b dealing with the question of carrying out a:corpse, sefer torah or a hoe.  Here we have key amoraim attempting to define the cases in which R. Shimon would and would not apply the heter.  R. Yochanan and R. Lakish make it clear that when the carrying is done for the sake of the object (cheftza) R. Shimon would still be lenient.  Rava states that when the carrying is done for the sake of the person (gavra) that R. Shimon would be machmir.  It remains unclear as to what R. Yochanan and Reish Lakish would say in Rava’s case.

The Gemara then takes the concept that is developed in the sugya on 94a/b and applies to many different cases (107b – catching snakes, popping pimples; 121b, catching dangerous animals).  Then on 42a we learn that Shmuel splits his psak between eino mitkavein and melacha she-eina tzricha l’gufa – he is meikel like R. Shimon in eino mitkavein and machmir like R. Yehuda in melacha she-eina tzricha l’gufa.  This position of Shmuel seems to be the source for the pask of the Rambam in these two areas as well.

We then looked at Rashi, Ramban and Tosafot regarding their definitions of the concept.  Rashi has two components to his definition that may or may not be related – that the activity is for removal and that the melacha is a coping mechanism.  Ramban removes the coping aspect of the definition and limits it to productive acticity.  Both Rashi and Ramban seem to read the words of R. Shimon is a more limited fashion (Rashba, Ritva and Ran all read like Ramban, while the Ba’al ha-Maor takes it even further).  Tosafot, by introducing the mishkan as the “guf” of every melacha adds an additional layer to the conversation.

There are three mekorot sheets that I created:

The first is simply a list of the key sugyot along with Rashi (link).

The second presents the main Rishonim (link).

The third presented some summary charts on these sugyot (link).

Melacha she-eina tzricha l’gufa


Hilkhot Shabbat – Eino Mitkaven Psik Reisha

November 16, 2010

The following shiurim represent the development of the ideas of eino mitkavei, psik reisha and lo nicha lei.  We began first outside of the area of Hilkhot Shabbat to show the force of intent (Nazir, Kilayim).  The fundamental conceptual question that we kept returning to was what is the nature of the ptur of eino mitkavein and how does psik reisha impact that process.  We based our discussion on the framework outline by Reb Elchanan Wasserman (see below for a brief summary).

I did not try to articulate a clear position of the Rambam.  While Reb Chaim (and the Brisker tradition) take it for granted that the Rambam held like the Aruch, the Hazon Ish was not convinced.  I am not sure that it is possible to ascertain exactly what the position of the Rambam was.  He seemed to pasken locally without ever articulating a principle regarding psik reisha d’lo nicha leih.

I am still not settled regarding the bottom line of how we pasken in a case that eino mitkaven psik reisha d’lo nicha on a drabanan. While the Rema, Magen Avraham, Rebbi Akiva Eiger, Gra and Shevitat haShabat all seem to be machmir, there are conflicting indication in the Mishna Berura, Shemirat Shabbat and Rav Ovadia.  In a terrific essay Rabbi Willig seems to be totally meikel in this case against the what appears to be the weight of Ashkenazi achronim.

I am putting six sets of mekorot as well as the five audio files of the shiurim that I gave on these topics.

  1. Sources for general introduction to Eino Mitkavein (link).
  2. Sources for general introduction to Psik Reisha (link).
  3. Sources for Psak of Tosafot and Aruch.  We worked off of the Tosafot in Shabbat 103 and not Yoma 34b/35a (link).
  4. A summary of Reb Elchanan’s Hakira regarding the heter of Psik Reisha (ki-mitkavein vs. tziruf maasim) (link).
  5. A chart that summarizes the psak of the Shulchan Aruch along with Magen Avraham and Taz, as well as Mishna Berura and Aruch ha-Shulchan in key cases (link).
  6. Though I did not  give shiur dealing directly with these mekorot, this is the material for Safek Psik Reisha (From Taz to Rav David Tzi Hoffman) (link).

Eino Mitkavein Psik Reisha – Conceptual Intro
Psik Reisha Psak – Aruch and Tosafot – #1
Psik Reisha Psak – Aruch and Tosafot – #2
Psik Reisha Lmaaseh – Shulchan Aruch
Psik Reisha Lmaaseh – Clarifying Lo Nicha Lei and Drabanan


Prayer – Radical Truth and Ultimate Silence

November 15, 2010

These two shiurim dealt with a series of mekorot that are very important in understanding the intimacy of the encounter that we will find in the tefilah of volume two of the Alei Shur.  Here we are introduced to the notion that we are simply not permitted to say words unless they were formulated by the Rabbis. Even within that framework, if the work appear false to us, then we may not falsely flatter God who is ultimate a God of truth.  The truth that Hazal were speaking of were questions of theology.  We discussed questions of history (like nachem on 9 AV).  This text raises serious questions about what people who simply do not believe out to say.

This then lead to place where we simply could not praise God outside of the context of Prayer.  This type of radical truth and ultimate silence leads to a certain level of distance between human beings and our creator.  As we proceed forward in the Alei Shur we will encounter a very different relationship between us and God.

You can find the source material at this link.

Here are the two audio files:

Truth and Silence in Prayer – #1

Truth and Silence in Prayer – #2


Amira l’eino yeshudi – parameter of b’makom mitzvah

September 28, 2010

In this shiur we analyzed the nature of the prohibition of playing musical instruments on shabbat (here is a link to those mekorot) in order to better understand a surprising leniency of the Raavya (quoted in the Tur) permitting people to arrange for non-Jew to play music at a seudat nissuin on Friday night.  This opened up an important discussion on the nature of the heter of b’makm mitzvah. (here is a link to those mekorot)

We then addressed the issue of having a non-Jew fix an eruv on shabbat.  This introduced the category of mitzvah-d’rabim which becomes a way in which we revive the position of the ittur. (here is a link to the eruv mekorot)

There were some internet problems, so the shiur was divided on the audio into three parts:

Amira – Musical Instruments – Fixing the Eruv 1

Amira – Musical Instruments – Fixing the Eruv 2

Amira – Musical Instruments – Fixing the Eruv 3


Alei Shur – Mussar Shiur #4 Kivnei Maron

September 28, 2010

This shiur functions as the background for the next Alei Shur shiur.  It also stands by itself as a foundational set of texts and ideas relating to Rosh ha-Shanna.  The gemara contains a basic contradiction regarding the nature of the judgment that takes place at this time of the year.  On the one hand we pass before hashem as sheep before the shepherd – one at a time.  On the other hand, God looks at all of us with a single gaze.  In certain respects we stand in judgment alone as individuals and in certain respects we stand with a community behind us.  This fundamental paradox describes, for me, some of the anxiety of these days.  To what extent do we feel like we can withstand such an intimate type of encounter with hashem?  Do we feel that our community will protect us along the way?

Another, deeper question is to what extent do we put ourselves out in front of the community in an attempt to lead people in a direction that we think they ought to take.  And, perhaps the hardest question – what is our community?  How broadly do we want to draw the boundaries around the people whom we think of as part of “our community?”  Do we mean only those who observe mitzvot like us?  What about those who daven in non-Orthodox shuls and are shomer shabbat?  What about the rest of world Jewry for whom the intricacies of Halakha are nothing more than foolish folk ways – are they part of my community?  What about non-Jews?

Here are the classic sources.

Here is the audio:

Alei Shur – Kivnei Maron – Individual & collective


Amira l’eino yehudi #3 – Bottom line – heter of b’makom mitzvah

September 28, 2010

In this shiur we went through the bottom line regarding when, if at all, one is permitted to rely on the lenient position of the Ittur – permitting amira even on an issur d’orayta.  You can see the mekorot at this link – we began with the Tur and went through the relevant passages in the Shulchan Aruch.

The discussion of the Ittur’s lenient position lead to an important distinction regarding two different types of minority opinions.  There are occasions when an opinion is not the accepted law, but it can be relied upon in certain circumstances.  However, the unique approach of the Or Zarua (that writing in a language other than Ashurit and Greek is not an issur d’orayta on Shabbat) seems to be a shita that has been rejected from the History of Halakha.  This is a concept that I call “Halakhik Darwinism.”

Amira – Relying on the Ittur