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April 23, 2014 / 23 Nisan, 5774
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Posts Tagged ‘halacha’

A Generation In Need Of Rededication

Wednesday, December 5th, 2012

The strength and numbers of Orthodox Jews in America have never been greater, and yet those of us concerned with Judaism’s future must admit we confront a future no less frightening than the future that was evident to Hannah’s noble sons in Modi’in all those centuries ago.

Then, Jewish ritual and belief was crushed by a dominant Greek culture that had been imposed upon but – let’s be honest – gladly borne by the Jewish populace. As much as we might want to argue otherwise, we must wrestle with the understanding that the majority of the Jews of the Hasmonean Era embraced Greek culture.

While in America there is no military or cultural imposition that demands a compromise of Jewish values or practice, there is no less of an embrace of the larger, secular, non-Jewish culture. The sad fact is we are losing many of our children. To believe otherwise is to willfully place blinders upon our eyes and shackles on our hearts. Anyone who is honest and who works with Orthodox teens – even teens who have received a yeshiva education – knows that too many do not find meaning, fulfillment or purpose in Judaism. They do not feel the beauty of Judaism, or the power of the halachot.

Instead, they chafe against a “lifestyle” they feel is restrictive and complain that being religious simply is not “fun.”

Orthodox Union President Dr. Simcha Katz outlines some examples of the malaise affecting our young people in his Jewish Action (Winter 5773/2012) article, noting how they text on Shabbat and argue that the use of the ubiquitous technology is morally indistinguishable from adults speaking in shul. He identifies an “underground” teen Shabbat culture that even allows for Friday night parties in empty houses or basements; parties organized by text or Tweet and always unsupervised; parties that often involve music and, too often, drugs and alcohol.

Was the threat to Judaism any greater during the Hasmonean Era? Was the pain Judah Maccabee felt when he looked upon his Jewish brethren any more acute than the ache a caring rosh yeshiva feels today? Yet what army do we fight to save Judaism? Where is our enemy?

Our Jewish children seem lost – determinedly so. Rather than the warmth of a small minyan, they feel embraced by their hundreds of Facebook “friends,” seemingly unable to appreciate the power of what having a true friend actually means. Imagine – hundreds of friends. More than a thousand even!

I am nearing retirement age, having lived a good life, and yet I require just the fingers of one hand to count the number of my friends; friends I know, cherish, love and respect. Hundreds of friends? Ridiculous! These are not friends. They are faceless faces; ciphers on an iPad or a smartphone. The relationship is no deeper than the pixels found on the computer monitor. These “friends” offer but a shallow glimmer of what life and relationships should be.

Those pixels shine only outward, never inward. Yet this is what draws our children.

And therein lies the challenge we face if we want to redeem this generation and to bring about a genuine rededication. How do we help our children learn to shine their light inward as well as outward?

Tractate Shabbat teaches that, “It is a mitzvah to place the Chanukah candles outside the door to one’s home, but in times of danger, it is sufficient to place the candles on one’s table [inside].” On its face, this text is a simple directive for a practical matter – the proper place for the menorah to be placed.

Kol Yisrael arevim zeh lazeh – every Jew is responsible for the other. Judaism is, first and foremost, a communal expression. No Jew should live isolated from the rest of his community, nor should he be concerned only with his own existence and survival. Each Jew is obligated to reach out to his fellow Jews. In this regard, placing our menorot on the outside of our houses symbolizes this essential lesson. We bring our light to those who are still in the dark; we seek to enlighten those who have not as yet had the opportunity and privilege to be on the inside. Our light shines outward.

Symbol Of The Eternal Soul

Wednesday, December 5th, 2012

The festival of Chanukah celebrates two miracles – the military victory over the Syrian Greeks and that one small cruse of oil, good for one day, providing light for eight days. The miracle of the light, however, is the main focus and central theme of this festival.

Thus, according to halacha, when we light the candles in celebration of Chanukah we are prohibited from using their light for any tasks. We are commanded to simply look at the light. All year long we are looking at what we see in the light, but on Chanukah we are to focus solely on seeing the light itself.

What is so special about the light of Chanukah? What is the Chanukah menorah’s message for us in our personal lives? Why does the Rambam call Chanukah “the most beloved and precious mitzvah”?

The answer is that the Chanukah lights help us focus on who we really are. We are not our body suits but are part of God’s Endless Light. Chanukah lights are the symbol of the Divine spark of the human soul, as Shlomo HaMelech says in Mishlei, Ner Hashem nishmat adam – the candle of God is the soul of the human being.

The Mishnah in Avot teaches, “There are three crowns: The crown of Torah, the crown of Kehuna [priesthood] and the crown of Monarchy.” Corresponding to these three with which Israel was crowned, there were three crowns on the Temple vessels. The crown of Torah corresponds to the gold crown, which was set on the Ark of Testimony (containing the two Tablets). The crown of Kehuna corresponds to the incense altar, for only regarding the priests does it say, “They shall place incense in Your Presence, and consume sacrifices on Your altar” (Devarim 33:10). Finally, the crown of Monarchy corresponds to the table in the Sanctuary, for tables, which in biblical and later Hebrew can symbolize wealth and bounty (Psalm 23), may here be viewed as evoking the economic and political power of the state.

However, the Mishnah adds that there is yet another crown, “the crown of a good name,” which “surpasses them all.” This crown is not enumerated among the others. Rather, it is kept separate from them and stands on its own. To what does this crown correspond in the Temple?

The Maharal of Prague associates “the crown of a good name” with the fourth vessel of the Temple – the solid pure gold menorah. The menorah had no gold crown encompassing it. Neither was it made of acacia wood inlaid with gold like the three Temple vessels mentioned above. Rather, the whole menorah was like a pure gold crown, embellished with golden cups, knobs and flowers. The entire menorah itself is a crown.

It is the same with a person’s good name. It is not an external crown that is placed upon one’s head. A person’s good name touches on his very essence. A good name includes one’s entire personality in all its components. It is not an external image, fashioned by public relations professionals, photographers and newsmen. A person’s good name is the reputation he earns for himself through his life’s work, all his deeds and ventures. That is why the Mishnah says that the “crown of a good name surpasses all the others.”

A person’s good name does not find expression at the beginning of his life but is acquired through strenuous, daily toil. Shlomo HaMelech said “A good name is better than precious oil” (Kohelet 7:1). However good it may be, oil is applied externally to a person’s body while a good name is that person himself.

As we light the menorah on Chanukah, it is a time to focus and reflect on the light of God, which is our eternal soul.

Daf Yomi

Thursday, November 22nd, 2012

Ball And Bat Substitutes ‘Cut Palm Branches’ (Shabbos 50a)

Children find amusement in simple, valueless objects such, as cardboard boxes, popsicle sticks, and colored pebbles – articles that have no value to an adult. Are these muktzah on Shabbos? Valueless objects are usually muktzah since they are not designated (muchan) for a Shabbos use. Our sugya states, however, that an adult may prepare them for Shabbos use and thus render them non-muktzah. For example, palm branches are muktzah. Yet, Rabban Shimon b. Gamliel in our Gemara states that if a person appropriates them for a use that is permitted on Shabbos, such as sitting upon them, the prohibition of muktzah falls aside. The halacha follows Rabban Shimon b. Gamliel.

The Rishonim note that the Gemara elsewhere (Shabbos 142b) states that a rock is muktzah even if it is used to cover a barrel. Indeed, the barrel too becomes muktzah since it serves as a base for the rock. That Gemara seems to contradict our own. If a person designates a rock as a barrel cover, the rock should cease being muktzah. Why does it retain its muktzah status?

The Rishonim offer two answers. The Rashba (Teshuvos 5:225) explains that preparing muktzah objects for a specific use before Shabbos is only effective if one intends to permanently use them for that purpose. Rabban Shimon b, Gamliel, for instance, designated the palm branches for continuous use. The Gemara regarding the rock, on the other hand, concerns a rock that someone intended to use as a barrel cover for just one Shabbos. That’s why it remains muktzah.

The Ran (23) writes that designating an object for a function for just one Shabbos is enough to render it non-muktzah so long as that function is commonly performed with that object. In the time of the Gemara, for example, it was common to use palm branches as seats, which is why Rabban Shimon b. Gamliel’s was allowed to designate them as such, but it was uncommon to use a rock for a barrel cover, which is why, in the Ran’s opinion, doing so did not change the rock’s muktzah status.

The Mechaber (Orach Chayim 308:22) cites the opinion of both the Rashba and the Ran, and the Mishnah Berurah (s.k. 97) rules that one may rely on the Ran if necessary. Note that everyone would agree that if one designates a rock as a permanent toy, the rock ceases to be muktzah.

The Intent of a Child

What about a child? Is his intention to use an item as a toy sufficient to make that item non-muktzah? Or must an adult designate the item as a toy on his behalf? Tosfos Shabbos (end of introduction to 308) rules that although a child’s deeds are effective, his thoughts are halachically insignificant (see Pri Megadim, general introduction to Hilchos Yom Tov 2:1:6). Thus, the child must perform a physical act to an item – such as coloring it – to render it non-muktzah. Some suggest that even the act of gathering items together is sufficient to designate them as toys (see Halachah Aruchah p. 118).

The Mechaber’s Opinion

The Mechaber (O.C. ibid, 308:45) rules that a muktzah object designated for play remains muktzah. “It is forbidden to play with a ball on Shabbos and Yom Tov,” he writes. The Rema, on the other hand, rules that we may follow those who are lenient in this matter. The Mishnah Berurah (s.k. 157) explains that the Mechaber maintains that an item’s muktzah status is only lifted if one intends to use it for a significant function; intending to play with it is insufficient. Sephardim follow this opinion and generally instruct their children not to play with muktzah objects even if they had been designated as toys before Shabbos. Ashkenazim, who follow the rulings of the Rema, allow children to play with muktzah objects designated as toys as long as the children performed a specific act to prepare the object for play or an adult so designated it (Halacha Arucha, ibid 114).

It is important to note that when the Mechaber rules that balls are muktzah, he refers only to muktzah objects that were designated to be used as balls before Shabbos. Balls that were originally manufactured, and sold as, toys are not muktzah, even according to the Mechaber.

Yaakov Avinu’s Delayed Marriage

Thursday, November 22nd, 2012

Note to readers: This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

The Rambam writes in the 10th perek of Hilchos Ishus (halacha 13-14) that if a man marries a woman, he is obligated to have sheva berachos for seven days. If one marries several women at once, he must have separate sheva berachos for each one for seven days – consecutively. The reason for this is because we cannot mix one simcha with another simcha. For this reason one may not get married on Chol HaMoed, for we are obligated to have simcha on Chol HaMoed and we cannot mix that simcha with the simcha that one is obligated to have for seven days after one marries. The Rambam says that we derive this halacha from the pasuk in this week’s parshah:Ma’le shevua zos… (Fill this week…).” Lavan told Yaakov Avinu that he should wait a week after marrying Leah before marrying Rachel.

The source for this Rambam is from the Yerushalmi. The Talmud Bavli, in Moed Kattan 8b, derives this halacha from a pasuk in Nevi’im.

There is a question on the Rambam that several Acharonim discuss (see Makneh Even Ha’ezer Kuntris Acharon 62:2). Why did Yaakov wait a week before marrying Rachel? The Rambam only said that one must observe the sheva berachos one week after another, but did not say that one may not marry another woman during his sheva berachos with the first woman. This question cannot be asked on the Yerushalmi, for we could answer that the Yerushalmi indeed prohibits marrying another woman during the sheva berachos of the first woman. The reason why the Yerushalmi derived the halacha from Yaakov Avinu and not from Nevi’im, like the Bavli, was in order to rule that one may not even marry another woman during the week of his sheva berachos with the first wife. But the Rambam rules that one can marry many women at once and we require each woman to have a separate week of sheva berachos. Why then could Yaakov not have married Rachel the very next day, and simply delay her sheva berachos?

The Keren Orah (Moed Kattan 8b) answers that the Rambam only permits one to marry other women if he marries them at the same time. If one marries one woman separately and only the following day wishes to marry another woman, he is not permitted to do so since the period of sheva berachos for the first woman has already begun. The Rambam was referring to a scenario whereby a man married several women at the same time; therefore the period of sheva berachos had not yet taken affect, which would have prohibited marrying other women. In Yaakov’s case, however, he did not realize that he had married Leah until the following morning. At that time, the period of sheva berachos for Leah had already begun and he was therefore unable to marry Rachel until after the sheva berachos of Leah were complete.

Other Acharonim suggest that even though one may marry another woman during the sheva berachos period of his first wife, the second sheva berachos will have different halachos attached to it if he waits to marry the second woman until after the sheva berachos period of the first wife is over. For example, during the regular sheva berachos period celebrated after one marries a virgin, the chassan is forbidden to go to work. Even if his wife allows him to go, he may not go to work because the prohibition is on him and she has no jurisdiction over it. Some Acharonim rule that when one marries more than one woman at a time, it is only the chassan’s prohibition against going to work for the first seven days. After the first seven days the prohibition of going to work stems from the wife, and therefore she could permit him to go to work. Even though Yaakov could have married Rachel the day after he married Leah, he feared that Lavan would force Rachel to permit Yaakov to go to work during her sheva berachos. Therefore Yaakov wished to marry Rachel after Leah’s sheva berachos period was complete in order to ensure that he would be able to be together with Rachel during the sheva berachos that was being celebrated for her.

The Jewish Vote: Same Old, Same Old

Wednesday, November 21st, 2012

In the wake of the presidential election, American Jews must once again ask a fundamental question that seems to defy both societal trends and a clear resolution: why do Jews overwhelmingly support the Democratic candidate, year after year, election after election?

That is not to say that the Torah conflates with the Republican platform, but rather that the lack of balance in the Jewish world is striking.

This is not something new, but has been the pattern for more than eighty years. (Late-nineteenth century Jews voted primarily for Republicans, being especially fond of Abraham Lincoln.) It was the late sociologist Milton Himmelfarb who several decades ago noted that “Jews earn like Episcopalians and vote like Puerto Ricans,” i.e., they are part of the richest demographic but vote like the (then) poorest.

What continually fascinates is that, like the lure of Pennsylvania to Republican presidential candidates – it seems like it should vote for the Republican but never does – the Jewish vote tantalizes Republicans but never seems to materialize. Based on our race, status, education, employment, etc., Jews should be voting for Republicans but rarely do in significant numbers.

The Jewish vote remains the chimera of the political conservative. For more than eight decades the Jewish vote has averaged 75 percent for the Democrat, rarely deviating more than 5 percent above or below that figure. But until Herbert Hoover’s election in 1928, the Jewish vote fluctuated and was relatively balanced.

It needs to be emphasized that the focus is not on those Jews who are capable of choosing a candidate in either party (as I have done on occasion), but on the significant number of Jews who can never vote for a Republican and will always vote for the Democrat. Their polling booth needs only one lever. It just cannot be that the Democrat is always the superior candidate to the Republican.

In the 2012 election, nearly 70 percent of Jews voted for President Obama, slightly down from the last election (78 percent) but very much in line with other immigrant communities like Hispanics (71 percent) or Asians (73 percent).

But Jews are no longer a predominantly immigrant community, so why do the voting patterns of newcomers, or outsiders to the political system, persist among the Jews, who are in the mainstream of the establishment? And why are Orthodox Jewish voting patterns almost the mirror opposite of the non-Orthodox, with more Orthodox Jews voting for Mitt Romney and, give or take a particular race, for Republicans generally?

* * * * *

First, Democrats are widely perceived as the party of the poor, the downtrodden and the outcast, and Jews – persecuted for most of our existence – have a natural sympathy for the underdog. As charity is a great virtue (and a fundamental commandment) in Jewish life, Jews especially are drawn to a system that appears charitable on the surface – the redistribution of income from the wealthy to the poor – and government is seen as the vehicle of that charitable distribution.

The weakness in that argument, of course, is that Jews do believe in charity, but primarily as a private endeavor. The tithing obligation, or the dispensing of gifts to the poor in biblical times, were all private ventures, and not publicly coerced.

Notwithstanding that at different times in history the Jewish community itself intervened and assessed wealthy members a sum of money to care for society’s poor, that was always considered a last resort and not particularly efficient. The king never levied taxes to care for the poor, though the religious establishment might. Charity as a private act lends moral perfection to the donor; the same cannot be said for a coercive taxation system that distributes only a small sum of the monies collected to the poor.

(Those who view taxation as a form of charity are certainly welcome to pay the higher tax rate proposed by the administration, which is indeed permissible under federal law and would entirely eliminate the current controversy in Washington about the best means of avoiding the fiscal cliff.)

Of course, it would be unacceptable in a Jewish context to have a permanent impoverished class – multi-generational families of welfare recipients – as it should be in an American context. The trillions of dollars spent since Lyndon Johnson’s Great Society initiated the War on Poverty has in fact exacerbated poverty, not alleviated it, with more poor in both real and proportionate terms today than when the programs started.

Melachot And Intent

Wednesday, November 14th, 2012

The juxtaposition in the Torah of the laws of Shabbat and the Mishkan, the Sanctuary, not only serves to identify the 39 melachot prohibited on Shabbat but also determines the conditions that must exist before one can be held liable for performing a melachah. One of these conditions is intent.

Like the Mishkan, melachah requires “carefully planned work” – melechet machashevet. There are various states of mind that may lack the intent necessary to perform a melachah. In some cases, such a state of mind results in one being biblically exempt from the consequences of one’s act although the act remains rabbinically prohibited. In other cases, the lack of requisite intent means the act is permissible on Shabbat in the first place.

A person who is aware of the act he is performing but forgot that today is Shabbat or that the act is prohibited on Shabbat is called a shogeg. In the Temple era, the shogeg had to bring a sin offering, a chatat, to atone for the act. A person who intended to perform a permitted act, such as retrieving a knife out of a shrub, and in so doing unwittingly performed a different act which is a melachah, such as cutting the shrub when lifting out the knife, is called a mitasek. The mitasek, unlike the shogeg, had no intention of performing the melachah and is therefore entirely exempt.

An act that is permissible in itself on Shabbat but which may – possibly but not inevitably – cause an unintended melachah to occur is called a davar she’ein mitkaven. For example, dragging a garden chair across the lawn, an act permissible in itself on Shabbat, may cause grooves to form in the earth that, if performed intentionally, would constitute the melachah of plowing. Or simply walking on the grass, which is permissible on Shabbat, may result in the uprooting or tearing of grass, which, if performed intentionally, would constitute the melachah of reaping.

Whether or not a davar she’ein mitkaven is permitted constitutes a Tannaic dispute between Rabbi Shimon, who permits it in the first place, and Rabbi Yehuda, who prohibits it. The halacha adopts the more lenient view of Rabbi Shimon. A person cannot, however, claim davar she’ein mitkaven where the melachah was an inevitable result of the permitted act.

For example, if the chair is so heavy that it must form a groove in the earth, or if one washes one’s hands (in itself a permitted act) over one’s own lawn, causing its inevitable watering (constituting the melachah of planting), one cannot claim he did not intend the melachah. This is because the result is so inevitable as to impute to one the intent to perform the melachah in the first place. Such an inevitable result is called psik reishe.

Note, however, that if the inevitable melachah arising from the permitted act is of no use to its performer, such as where one washes one’s hands over a stranger’s lawn, the act is permitted in the first place and is called a psik reishe d’lo neecha lei. Such an act, though biblically permitted, would, according to most opinions, be rabbinically prohibited, unless certain extenuating circumstances exist. Such circumstances are the threat of severe financial loss or when the performance of a mitzvah is involved.

Based on the above principals, Rabbi Moshe Feinstein permits one to open the door of a thermostat-controlled lit oven on Shabbat, even though the resulting intake of air may cause the thermostat to kick in and turn up the flame. Rav Feinstein’s reasoning is that one’s intent is merely to open the oven door. This will not inevitably result in the thermostat kicking in, and it is, therefore not in the category of psik reishe but rather a davar she’ein mitkaven. As such, it is permitted in the first place.

Price Freeze!

Wednesday, November 14th, 2012

Hurricane Sandy had knocked down the power lines to Noach’s house. After three days with no electricity, he heard that a neighbor had a spare generator.

“I’m happy to lend the generator to you, but it has no gas,” said his neighbor. “I have jerry-cans for you to fill; you’ll have to wait in line to buy gas.”

Noach had seen the lines at the gas station. The hurricane had severely disrupted fuel distribution and very few stations were open. The line of cars waiting for gas stretched many blocks. Even the line of people with jerry-cans stretched all the way around the corner.

After Noach waited five hours, it was finally his turn to fill up. He was pleasantly surprised to see that the price of gasoline was the same as before the hurricane, even though this was the only gas station operational for miles around. The government had imposed controls to prevent price gouging, requiring the stations to maintain their former prices.

Later in the week, Noach met Mr. Gassner, who operated the gas station. The storm had been a boom for his business. His team had worked hard, dispensing gas non-stop, 24 hours a day, for three days, until other stations reopened.

“It was considerate of the government to freeze the gasoline prices,” Noach commented.

Mr. Gassner, however, was furious about the price control. “It wasn’t fair that the government required us to keep regular prices,” he complained. “People were crazy to buy even a small amount of gas, and the supply was so limited. By market theory of supply and demand, I could have easily charged three times the price. People would have walked away happy that they got anything!”

Noach was surprised to hear this opposing perspective. “It would be interesting to hear what halacha has to say about this issue,” he said to Mr. Gassner.

“Do you really think halacha has what to say about this?” asked Mr. Gassner.

“I’m sure it has something to say,” said Noach. “Let’s go ask Rabbi Dayan!”

The two went over to Rabbi Dayan. “Is there any source in halacha for government regulation of prices?” Mr. Gassner asked.

“This case is reminiscent of a fascinating halacha,” said Rabbi Dayan, “which emphasizes the need for control of the market on critical items.

“The Gemara [B.B. 90a] states that a person should not earn a profit margin of more than 1/6,” explained Rabbi Dayan. “This means that if the item cost him $100, he should not sell for more than $120, which would provide a profit greater than one-sixth of the sale. This regulation is limited by the Rambam and Shulchan Aruch to items that entail chayei nefesh – staple food items – such as wine, oil, and flour.” (C.M. 231:20; Pischei Choshen, Ona’ah 14:8)

“But what about the store’s overhead and labor costs?” asked Noach. “If a store were to charge only 20 percent above its purchase cost from the supplier, it would never break even, forget about a profit!”

“The overhead is added to the cost, as well as basic consideration for time and labor,” explained Rabbi Dayan. “Thus, if the food itself cost $100, the proportional share of overhead is $20, and basic time and labor amounts to another $5 – the base cost is $125 and the store would be entitled to sell for $150.”

“But if other, non-Jewish, stores do not follow this halacha, it’s unfair to limit the individual’s profit,” argued Mr. Gassner. “They may easily mark-up 70-100 percent.”

“This halacha applies only when a beis din has control over the entire market and can force all the sellers to follow suit,” said Rabbi Dayan. “However, if the other stores sell as they please, an individual store owner is not required to curtail his profit margin.”

“What about other items?” asked Mr. Gassner. “Is there any profit limitation for gasoline?”

“The SM”A [231:36] explains that staple food items have a one-sixth limitation, as mentioned,” said Rabbi Dayan. “For items related to food preparation it is permissible to charge double the cost, and for items unrelated to food the store can charge whatever mark-up it wants.”

“So where does this leave us about the price freeze imposed on the gas?” asked Mr. Gassner. “Would halacha view this a fair regulation?”

How Did Eisav Sell The Bechorah?

Wednesday, November 14th, 2012

Note to readers: This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

We learn in this week’s parshah of Eisav’s sale of his birthright to Yaakov Avinu. There are several questions surrounding the legitimacy of this sale. The Rivash (Teshuvos 328) questions why the sale was valid, since Eisav sold something that did not exist at that time. The halacha is that one may not sell anything that is not in the world at the time of the sale. Since the bechor did not yet exist or take effect at that time, how could the sale have been valid?

The Rivash says that he heard that the Rosh and his son, the Tur, answered that although one may not sell an item that does not yet exist at that time, he may sell an item to someone in this circumstance if he swears that he will sell it. Since the pasuk says that Yaakov made Eisav swear that he would keep his word, the sale was valid. The Rivash argues vehemently with this answer, and concludes that neither the Rush nor the Tur could have said this answer. He says that the reason one cannot acquire or sell an item that does not exist is due to a problem with the actual acquisition of the item – and that swearing cannot overcome that issue.

The Rivash answers that prior to mattan Torah one could sell items that did not yet exist. Therefore the sale of the bechorah was valid.

Some Acharonim explain the opinion of the Rosh, namely that swearing helps one to sell an item that does not exist by properly defining the reason one cannot sell an item that does not exist in the world. They explain that the underlying factor that is lacking is that one needs a certain amount of intent (da’as kinyan) in order to make a sale. When the item does not exist, one cannot reach the level of intent that is required to make the sale. However, a sworn declaration to keep his word adds to his level of intent – and the sale is valid.

On the explanation of the opinion that holds that the reason why one cannot sell an item that does not exist is because one cannot reach the required level of intention, the Ohr HaChaim points out that it only says that the purchaser cannot reach that level of intent to acquire. However, the seller can reach the required level to sell. Therefore, he asks, how can the seller’s sworn declaration help? It should only help the seller’s intent and should not aid the buyer’s intent. Thus, in the sale between Yaakov and Eisav the oath that Eisav, the seller, took should not have facilitated a sale on something that did not exist.

While this may indeed be the opinion of several Rishonim, the Shita Mekubetzes (Bava Metzia 66b) quotes from Rabbeinu Tam and the Tosafos HaRosh that explicitly say that the problem with selling an item that does not exist rests on the level of intent that the seller can reach. According to those Rishonim, swearing should aid in selling an item that does not exist since the oath will add to the seller’s level of intent.

I do not understand the Ohr HaChaim’s question. I believe that when the seller swears that he will sell the item it should increase the level of intent – even the buyer’s intent. Thus, even if the problem with the sale of an item that does not exist is with the level of intent that the buyer can reach, an oath should resolve that issue.

Reb Moshe Shmuel Shapiro, zt”l, suggests an alternate explanation of the Rosh and the Tur’s opinion. He says that we must first understand how a regular acquisition works. In every sale the buyer and the seller reach an agreement, with the buyer then required to perform a ma’aseh kinyan (action of acquisition) on the item. For example, if one is buying a small movable item he will perform hagbah (lifting it up). However, the ma’aseh kinyan is not what actually transfers ownership of the item to the buyer; rather it is the agreement that actually transfers the item to the buyer. A ma’aseh kinyan solidifies one’s words into a binding agreement, and that binding agreement is what actually transfers property ownership. That is the reason why whenever the Gemara is discussing whether a kinyan has occurred, the Gemara uses the words “eino yachol lachzor” (he cannot retract). Why? Because his kinyan produces an agreement from which he may not retract. And that is what transfers ownership.

Printed from: http://www.jewishpress.com/judaism/parsha/how-did-eisav-sell-the-bechorah/2012/11/14/

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