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December 17, 2014 / 25 Kislev, 5775
 
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Posts Tagged ‘halachah’

The Proper Performance of Bris Milah

Tuesday, September 4th, 2012

Note from Harry Maryles: The following post was submitted to me by someone who is close to Rabbi Zuriel. It is a footnoted and well sourced Halachic analysis of the Mitzvah of Bris Milah and Metzitza B’Peh.

Rabbi Zuriel lives in Bnei Brak and was a close talmid of Rav Ruderman famed founder and Rosh HaYeshiva of Ner Yisroel in Baltimore. He has written well over 30 Seforim on subjects ranging from Shas to Tanach to Mussar to Kabbalah.

After moving to Israel, Rabbi Zuriel learned with – and became very close with many Gedolei Torah including Rav Sraya Deblitzky, Rav Shmuel Toledano, and Rav Friedlander – the famed mashgiach of Ponovezh.

He also learned with Rav Zvi Yehuda Kook, and was the Mashgiach in Shalavim. He is very knowledgeable in all areas of the Torah, and very well informed regarding current events and history . His approach is an independent one and is solely guided by his understanding of the the Torah.

His words follow. 

It is always sad to see dispute and bickering amongst brethren. It is even more aggravating to see anger and emotional outbursts, bitter accusations and personal attacks in the public domain. The present controversy regarding how to do the metzitzah of blood during Bris Milah, if by mouth or by tube, is a case in point.

If we check the Gemarah source[1] and so too the Rambam[2] , and the Shulchan Aruch[3] , we see no mention of the “Peh,” the mouth. The Hebrew word for suction is “motzetz” and this can be performed also by the use of a tube using mouth suction. It is important to precede all discussion on this topic by “putting everything on the table”. We are not discussing a Biblical Commandment, nor are we referring to a Rabbinical enactment from the Gemarah’s time. We are referring to a hallowed Minhag from days of yore to use the mouth only.

Certainly the withdrawal of blood is a Rabbinical enactment, but the direct application of the mouth is only a Minhag. Beyond that, using a tube by mouth suction is also a utilization of the mouth and should not to be considered as abolition of the use of the mouth[4]. This understanding is important to know before we clarify what a parent should decide in cases of doubt.

The world famous Chasam Sofer wrote a responsum to permit using other methods than the mouth (“Bris Olam”, page 216)[5]. The great Rabbi Shimshon Raphael Hirsh permitted the use of a short tube (Shemesh Marpeh, page 70). Rabbi Yitzchok Herzog wrote[6] that since the medical experts claim that there is a danger of infection in many cases, it is advisable to use a tube. He adds that those who insist adamantly that the withdrawal should be done by direct application of the mouth “are mistaken and so too cause others to make a mistake”.

The illustrious Rabbi Avraham Kook permitted the use of a tube when in doubt of infection (Da’as Kohen, 142) [also, see the words of the Aruch Hashulchan[7] and Rabbi Chaim Berlin[8]]. Rabbi Zvi Pesach Frank claimed[9] that since the entire purpose of the Rabbinical enactment of withdrawing the blood from the wound is to avoid infection, this act being done by the tube is part and parcel of that healing process. May we add that this would even be a “hiddur Mitzva” since this is even safer than the personal physical contact of the Mohel to the open wound.

But why is there such a vehement outcry against the usage of the tube? The answer is that for nearly two hundred years there is fear of Gentile government intervention making the essential circumcision ritual illegal. This started in Paris in 1843, reached Germany and Poland and today in California a small group of “humanists” appealed to the State Legislature to ban the practice. This move was defeated.

The fear is that if we ourselves admit that this mitzvah could be damaging to the child, the Department of Health might make capital of our admission. The second cause of the great emotional outbursts of resistance to any change in the ceremony is the worry to keep intact all of Jewish way life, to stay as close as possible to the customs of our forefathers; to forestall all reforms.

Running For Judge With An Orthodox Background And A Universal Perspective

Thursday, August 30th, 2012

Just days before the entire world stands before the great Judge on Rosh Hashanah, Democrats of the 5th district of Brooklyn will be casting their votes in the primary election for civil court judge. Shlomo Mostofsky, private attorney and former president of the National Council of Young Israel (NCYI), is currently campaigning to secure the post as judge.

“I always wanted to be a judge,” Mostofsky told The Jewish Press, “[and now] was the best opportunity to do so.” Mostofsky explained that there was a seat that had recently been vacated and that because there was virtually no Republican opposition, winning the primary would effectively mean winning the general election as well. Additionally, Brooklyn’s 5th District encompasses “key areas” in which he could serve the local communities, neighborhoods such as Boro Park, Kensington, Bay Ridge, and Sunset Park. Recalling his 11 years as president of NCYI, Mostofsky said that he believes his previous projects and experiences would help him in his new position.

He also said that he’s confident his countless meetings with politicians and citizens from countries around the world would provide him with a larger, more wholesome perspective on the diverse ethnic, religious, and immigrant groups that are in the district than those of the traditional attorney or judge. Additionally, Mostofsky met the chief justice and the associate justices of the South African Supreme Court and of the International Court of Justice. “These are [unique] life experiences to bring to the court that others may not have,” Mostofsky said. He also mentioned that during his tenure as president, he succeeded in “taking the [NCYI] from the red to the black.”

“Brooklyn is the melting pot of New York City,” Mostofsky said. Although many people have endorsed Mostofsky, some are hesitant to elect an Orthodox Jew to the court system. Mostofsky, however, believes that becoming judge will benefit both the Jewish community and the Brooklyn community as a whole. “I’ve worked in court for 12 years and many of my clients have been Orthodox Jews.” Although halachah allows and requires Jews to go to court under specific circumstances, Mostofsky doesn’t “believe that our community is comfortable in court.” He hopes that a “Jewish presence” in the court, although it won’t affect the court’s decision, will help Jews become less wary with the American justice system. He stressed that the civil courts, known as “the peoples’ court,” is usually a person’s “first contact” with the courts.

Additionally, Mostofsky explained that he would “have the opportunity to make a Kiddush Hashem” working as a judge. A single courtroom is filled with judges, court officers, litigants, and lawyers. He hopes that when people see a Jewish person treating every person, regardless of his or her background, fairly and equally, they will carry that image with them as they “move on to other places [in life].”

Originally, the primaries were supposed to be held on September 11, but were postponed to September 13.

Conservatives to Ordain Gay and Lesbian Rabbis in Israel

Thursday, April 19th, 2012

The Board of Trustees of the Schechter Rabbinical Seminary voted Thursday night to accept gay and lesbian students for ordination beginning in the next academic year.

Affiliated with the “Masorti” movement in Israel and with the Jewish Theological Seminary in New York, Schechter trains educational and spiritual, non-Orthodox leaders for positions in Israel.

“The Schechter Rabbinical Seminary views the serious process leading to this decision as an example of confronting social dilemmas within the framework of tradition and halachah,” Hanan Alexander, chair of the seminary’s Board of Trustees, said in a statement. “This decision highlights the institution’s commitment to uphold halachah in a pluralist and changing world.”

Students are ordained by a rabbinical court, made up of three members of the Rabbinic Advisory Committee of the seminary, all of whom are members of the Rabbinical Assembly of the Masorti/Conservative movement. The court members are chosen by the candidate and subject to the approval of the seminary’s dean. They have different opinions regarding the ordination of gay and lesbian students, according to the seminary.

“This unique mechanism is an expression of halachic pluralism, one of the founding principles of SRS,” the seminary said in its statement. “The Seminary is a religious institution of the Masorti/Conservative Movement, bound by Halacha, whose inclusive approach allows for a variety of Halachic opinions.”

A Shoe, Handkerchief, and Pen

Wednesday, June 17th, 2009

What do a shoe, handkerchief, and pen have in common? For English buffs, they all contain an “e.”

Let’s try in Hebrew: What do na’al, sudar, andeit have in common? They all begin in alphabetical order: Nun, Samach, and Ayin. OK, but better…. in Choshen Mishpat, these are the classic items for “Kinyan Chalipin.”

A fundamental principle of Jewish monetary law is that a transaction must be accompanied by kinyan, an act of acquisitionto be valid. Verbal arrangements, while they should be upheld, are usually not enforceable as binding transactions. (There are a few exceptions, most notably charity pledges.) Even payment does not always make a transaction legally enforceable if not accompanied by an appropriate kinyan.

There are many different acts of kinyan that relate to different kinds of transactions, as described in the first chapter of Maseches Kiddushin. For example, small movable items, such as books, are acquired by raising (Hagba’ha), large items such as furniture by dragging (Meshichah), and real estate through payment, contract or taking possession (Kesef, Sh’tar or Chazakah). Perhaps the most versatile kinyan, which works for both movable items and real estate, and also to create personal obligations and debt, is Kinyan Chalipin.

Towards the end of Megillas Ruth, which we read on Shavuos, Boaz took off his shoe to acquire rights to Ruth. This act smacks of Yibbum, particularly in the context of reestablishing the household of the deceased relative. However the verse clearly is not dealing with Yibbum, but rather with the transfer of legal rights: “Formerly this was done in Israel in cases of … exchange transactions to validate any matter: One would draw off his shoe and give it to the other” (Ruth 4:7).

Handing over a shoe or other functional item (k’li) symbolizes an exchange, chalipin, and expresses full intention of the parties for the transaction. Boaz handed over his shoe to Ploni Almoni (usually understood as Mr. So-and-so), and received from him, in exchange, the legal rights to redeem the fields and take Ruth.

This was commonly done to validate any transaction; the buyer would hand the seller an item as chalipin, a symbolic exchange. It was a quick and easy means of making transactions and agreements immediately enforceable and legally binding.

Consider the following scenario: Shmuel and Rina were engaged and shopping for furniture to outfit their apartment. Some stores were too expensive and others weren’t quite their taste. At Frankel’s Furniture they finally found a bedroom set that was just what they wanted. Because it was a display item they received a 35% discount, making it affordable. They paid for the item and received a sales invoice, with delivery slated for three days, and went happily along their way.

According to the classic rules of Kinyan this sale is not yet finalized! Neither payment nor a contract is a valid act of kinyan for movable items, only picking up or dragging them. Both sides still have the legal right to renege, although they are strongly discouraged from doing so. However, if Shmuel were to hand his pen to Mr. Frankel as Kinyan Chalipin, the sale would be finalized and the bedroom set would be theirs, with no possibility of reneging.

In practice, Halachah validates sales completed in the prevailing customary business manner, based on Kinyan Situmta (to be discussed at some later date, IY”H). Thus, nowadays, after paying and completing the sales invoice in the customary manner, it would not be possible to renege, unless the prevalent practice allows returns.

During the time of Ruth, the favored item of chalipin was a shoe. In the Gemara, the shoe gave way to the sudar, a cloth or handkerchief. It is not even necessary for the seller to take the entire cloth from the buyer, but to grasp a significant portion of it (3×3 inches) and then return it. In recent decades, as handkerchiefs gave way to insignificant paper tissues, the ever-available pen is typically used to perform Kinyan Chalipin.

With decreased awareness of Jewish monetary law and the standardization of commercial practices, Kinyan Chalipin is rarely used in day-to-day business transactions and is mostly utilized in halachic transactions. Thus, we usually encounter Kinyan Chalipin when selling chametz, writing the kesubah at weddings, accepting binding arbitration in beis din, and preparing a halachically valid will (to be discussed next month, IY”H). The concept of Kinyan and the effectiveness of Kinyan Chalipin are also important foundations for future discussions.

With the world going paperless, pens are also going out of vogue. The up-and-coming item for Chalipin is … a cell phone. English buffs – no worry; it also has an “e.” Hebrew lovers, no worry – it also begins with the next letter, peh – pelephone!

Rabbi Meir Orlian is a halachah writer for Machon L’Choshen Mishpat. The Machon, which is headed by HaRav Chaim Kohn, is committed to providing awareness, education and services in all areas of monetary issues that arise in our daily lives. For more information visit www.machonmishpat.com

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/a-shoe-handkerchief-and-pen-2/2009/06/17/

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