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April 17, 2014 / 17 Nisan, 5774
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Posts Tagged ‘Beis Din’

Daf Yomi

Thursday, October 4th, 2012

Lulav, Shofar, Bris
“His Hand Is Not At Rest”
(Shabbos 3a)

Our Gemara discusses cases of transferring items from hand to hand. Our Gemara discusses all objects. On Rosh Hashanah and on Sukkos, we can clearly specify an object that would be given from hand to hand. When Rosh Hashanah falls out on Shabbos, we do not blow shofar. On Shabbos of Sukkos, we do not shake our lulavim. The concern that we might carry a shofar or lulav on Shabbos was so great, that our Sages deemed it preferable to forbid the performance of these mitzvos altogether.

A Shabbos Bris?

On the other hand, we find in the sugya at Shabbos 131b that a bris milah may be performed on Shabbos, if it is the eighth day after the child’s natural birth. The accepted halacha follows Rabbi Akiva’s opinion, that it is a Torah prohibition to carry a knife through the reshus harabim to the site of a bris milah. Why did our Sages not forbid bris milah on Shabbos, to prevent the mohel from accidentally carrying a knife, just as they forbade lulav and shofar?

Skilled Mohel

The Rishonim address this question in various places throughout Shas, and offer a variety of answers. Tosefos (Megillah 4b, s.v. vaya’’avirena) explains that the mitzvah of bris milah has preeminent importance, since Hashem sealed thirteen covenants with Avraham Avinu in its merit, as we learn from the pesukim beginning, ““This is My covenant with you,”” (Bereishis 17). Furthermore, Tosefos explain that every Jew, regardless of the level of his Torah knowledge, must perform the mitzvos of shofar and lulav. Therefore our Sages were concerned that an unlearned Jew might accidentally come to carry. However, bris milah is only performed by a skilled mohel, who is presumably knowledgeable enough to refrain from carrying on Shabbos.

Communal vs. Individual

The Ran (Rosh Hashanah, on the Rif 8a) explains that on Yom Tov, the entire Jewish people are busy performing the mitzvos of the day, therefore they cannot be expected to keep an eye out to prevent one another from carrying. However, when a bris milah occurs, only the mohel is busy in performing the mitzvah. The other Jews assembled will be free to prevent the mohel from carrying his knife.

An Overriding Mitzvah

Other Rishonim (Ritva, Succah 43a; Meiri, Megillah 4b) explain that in contrast to the mitzvos, the bris milah itself involves a Torah prohibition. If not for the pasuk that orders us otherwise, it would be a violation of meleches choveil (wounding) to perform a bris milah. Since the Torah instructs us that bris milah takes precedence over a definite violation of meleches choveil, our Sages did not forbid it.

An Eight Day Count

The Ritva (ibid.) adds another explanation. As we know, outside of Eretz Yisrael, two days of Yom Tov are observed, since the messengers from the Beis Din in Yerushalayim were unable to reach Chutz La’’Aretz in time to inform them when the new month began, and on which day to observe Yom Tov. As a result, they observed both days just in case. Our Sages forbid shofar and lulav in favor of guarding Shabbos, since shofar and lulav might be observed on the wrong day. The certainty of Shabbos observance took precedence over the possibility of shofar and lulav. Even in places where they were familiar with the fixed lunar cycle, and knew which was the correct day for Yom Tov, our Sages made no exception. They wished to preserve one consistent set of rules for all Jewish communities throughout the world. Bris milah, on the other hand, does not depend on a lunar date. The certainty of bris milah performed on the correct day, eight days after birth, takes precedence over Shabbos.

Doubt and Negligible Doubt

The Chasam Sofer (in his commentary on Shabbos 131b), discusses bris milah as also involving an element of uncertainty. Unbeknownst to us, the child may have been born with health complications, G-d forbid, which would classify him as a neifel, whose bris does not preempt Shabbos. He states that a question of the correct date is a justified concern, since the Bnei Chutz La’Aretz observed both days, without knowing which was the Yom Tov medeoraisa. However, only a small minority of babies are neifels, therefore it is a negligible doubt, which would not justify preempting the bris.

May Beis Din Punish On Shabbos?

Wednesday, March 14th, 2012

The Yerushalmi, in Sanhedrin 4:6, derives from the pasuk in the beginning of this week’s parshah, “lo seva’aru eish b’chol moshvoseichem b’yom HaShabbos – and you shall not ignite a fire in any of your dwellings on Shabbos,” that Beis Din is prohibited from judging on Shabbos. The Rambam, in Hilchos Shabbos 24:7, rules that Beis Din may not carry out the punishment of either death or lashes on Shabbos. He cites the same pasuk of “lo seva’aru” as the source for this halacha. In his Sefer Hamitzvos the Rambam lists as a separate negative commandment (number 322) that Beis Din may not judge or carry out a punishment on Shabbos.

The simple understanding of this halacha is that even though it is a mitzvah to kill someone who is chayav misah (deserving death) on Shabbos, it is forbidden. Despite being a mitzvah it may not be performed on Shabbos, when killing is prohibited, since the Torah says that the Shabbos should not be desecrated for this purpose. However, the Minchas Chinuch asks why the Rambam lists this as a separate mitzvah, when in fact it is the regular prohibition of not killing on Shabbos. This implies that the prohibition to judge and carry out punishments is a new prohibition, separate from the prohibition to kill on Shabbos.

The Magen Avraham, in Orach Chaim 339:3, discusses this matter and proves that there is a new prohibition to judge and exact punishment on Shabbos. He cites the above mentioned Rambam in Hilchos Shabbos and points out that the Rambam includes in the prohibition that Beis Din may not administer lashes on Shabbos. The Magen Avraham says that there is no prohibition of giving someone lashes on Shabbos, but rather that this is forbidden because there is a new prohibition not to judge and punish on Shabbos. He concludes that this is not a clear proof since often, when Beis Din administers lashes bloody wounds are created – which is forbidden on Shabbos.

The Rashba, in Teshuvos 1:357, holds that Beis din may appoint a non-Jew to carry out their verdicts. This is because the one who carries out the punishment does not have to be a real shaliach of Beis Din; rather it merely must be done on their behalf. Reb Elchanon Wasserman, zt”l, Hy”d, in Kovetz Haurus 76:18, explains that Beis Din does not have to carry out the actual punishment; instead they must arrange for it to be executed, and therefore they may appoint someone who is not generally suitable for shalichus. Alternatively the Rashba can be explained, based on the ruling of the Nesivos Hamishpat (Choshen Mishpat 182:1) that says that a non-Jew is fit for shalichus when all that is required is an action. A non-Jew is only unfit for shalichus of a transaction. Therefore Beis Din may appoint a non-Jew to execute their punishments.

Several Achronim ask the following question concerning the ruling of the Rashba: The Gemara, in Yevamos 6b, implies that there is never a situation whereby Beis Din may execute the death penalty on Shabbos. Since Beis Din may appoint a non-Jew to carry out their punishments, why then can they not punish on Shabbos by appointing a non-Jew to kill? However, if we say that there is a separate prohibition to judge and punish on Shabbos, aside from the actual killing, then Beis Din would be prohibited to do so – even if they were to appoint a non-Jew to carry out their verdict.

The Mishnah in Sanhedrin 73a says that if one is chasing after another in an attempt to kill him, everyone must prevent the attempted murder by any means – even by taking the life of the attempted murderer. The Mishnah says that this halacha also applies when one is chasing after one of the arayos. If one is chasing another man on Shabbos, there is no doubt that the halacha applies and that he may be killed since it is a matter of pikuach nefesh. However the Mishneh L’melech says that he is unsure whether the halacha applies to one who is chasing after one of the arayos, since it is not a matter of pikuach nefesh. The reason that he says that perhaps one would not be allowed to kill someone who is chasing one of the arayos is because it is a punishment that cannot be administered on Shabbos.

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

Chronicles Of Crises In Our Communities – 10/16/09

Wednesday, October 14th, 2009

Dear Rachel,

Back in June of 2007, I wrote a letter which you printed, in which I described a “Visit to Hell” – which both my wife and I had the unfortunate luck of experiencing. The letter depicted a wonderful shelter for abused Chareidi women called Miklat. I expounded a bit on the horror we heard about, the deep scars we witnessed and the wonderful rejuvenation and freedom that these beaten and battered young women are experiencing. Unfortunately, there are so many more abused women who need help.

So why am I writing again? Because the evil continues and is perpetuated by so-called leaders and mechanchim who refuse to bend a finger to help. They are either selfish, vicious or both. Perhaps you have a better understanding and reasoning to the sickness known as “I-don’t-give-a-darn.”

I know that if I were to specify here the names of individuals, both you and I will be ostracized for spreading “lashon ha’ra.” The focal point of what the letter wants to convey would be immediately subverted and the pious do-gooders will instantaneously forget the victim involved. After all, it is so much easier to point a finger and accuse others of malcontent and hearsay and spreading lashon ha’ra than to concentrate on the gist of the letter, namely, an Agunah who is caught in the two-pronged pincers of an abusive husband and the egotistic, heartless leaders who give him encouragement.

(By advertising the names, I believe a dent can be made in the false veneer of self-importance these individuals have wrapped around themselves. Perhaps, we ought to! Let them see that there are those who are just as determined to free the young woman as they are in keeping her chained. I think that seeing their names in a widely read paper like the JP will make some rethink their positions.)

What am I going on about?

There is another ugly episode (just one of thousands in Israel!) taking place in the streets of Yerushalayim! A young woman, beaten and abused for years, was finally able to escape to safety. In the safe house she is in, she is given warmth, comfort and safety from her husband. And, yet, at this point her troubles truly begin!

Rachel, her husband refuses to give her a Get – so what else is new? Every trick in the book has been employed by this bloodthirsty goon in order to avoid coming to Beis Din. When he eventually did show up, the Beis Din was its usual spineless conglomerate of male-apologists who see the woman as subservient. Instead of ordering the husband to give a Get – as every piece of evidence and testimony warranted – the dayanim “recommended” that the husband should “think of being so-kind as to give the Get!”

Deliberations in the case were postponed to a date not yet determined, the Agunah told that her husband “will be asked to go for a psychiatric analysis, and if he goes and if the psychiatrist opines that a Getis warranted, the husband will be urged to give the Get.” Are you with me, Rachel, on the discombobulated and ugly way our Batei Din conduct the business of Tzedek, Tzedek Tirdof??? This terrified and beaten woman must now rely on a killer’s good graces and choice of going to be examined!

Now, let us take a step back and bring in another very important person whose unwillingness to bend a finger is giving the husband all of the encouragement he needs to hold out until the Agunah turns white.

Many well-known rabbis are reluctant to use their influence to help free Agunot.Perhaps the father of the man is a contributor to the yeshiva or shul, or any number of other things, but the sad fact is that silence reigns and the chance to free an Agunah is lost, as is in this case. Every effort was made to contact a particular Rosh Yeshiva, to no avail. Letters were written to alumni, staff members of the kollel and fund-raising entities. One response (via e-mail) stated simply: “I don’t want to get involved so take my name off and don’t send me anything.” From the rest, Silence!

So the Rosh Yeshiva was approached; at one point the Agunah and her attorney met him on the street. With tears and cries, they asked that he help them in any way he can. Ein Kol V’ein Oneh. Letters sent to him were also never answered. And the Agunah sits and waits in hiding, as her legal counselors try everything they can.

So, what am I looking for from you?

Rachel, I had the good fortune and ecstatic feelings of accomplishment in having been instrumental in the release of two Agunot; one was shackled for five years, the other over seven years of captivity. G-d was good to me and my “input” released them within six months after getting involved.

But this is not intended to ring my chimes; rather, to release the seething emotions of disbelief, frustration and disgust I have for our so-called “leaders” who encourage and give comfort to wild animals otherwise mistaken as husbands. Where are those with the guts to do what is right, to shun and ostracize the evil they see and the heart to do whatever is necessary to release a Bas Yisroel from the clutches of the Devil?

How did the fake-and-frauds approach the Yom HaDin? These are people who are teachers, melamdim, and morei horoah? These are people we need to emulate, and to adhere to the lessons they convey?? These are the ugly individuals who are supposed to be our emissaries to Hashem? Whom are they kidding? Whom are we kidding?

Rachel, there are two ways a woman can become free. One is by receiving a Get. The other is by becoming a widow! At times I wonder which one the husbands prefer. And why don’t we, the caring public, give him a choice he cannot refuse? I wonder.

Isaac Kohn
kohnisaac@optonline.net

Printed from: http://www.jewishpress.com/sections/family/chronicles-of-crises/chronicles-of-crises-in-our-communities-198/2009/10/14/

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