Parashat Shavua

Hemdat Yamim Parashat Vaetchanan

Hemdat Yamim Parshat Va'etchanan, 11 Av 5762 ========================================================= This edition of Hemdat Yamim is dedicated to the memory of R' Meir ben Yechezkel Shraga Brachfeld o.b.m. ========================================================= Eretz Hemdah is the premier institution for training young rabbi's to take the Israeli Rabbinate's rigorous Yadin Yadin examinations. Eretz Hemdah, with its distinctive blend of Religious Zionist philosophy and scholarship coupled with community service, ensures its graduates emerge with the finest training, the noblest motivations and the strongest connection to Jewish communities worldwide. =========================================================== The Responsibility of Religious Leadership / Harav Yosef Carmel In our parasha we find Moshe Rabbeinu diligently setting up arei miklat (cities of refuge) on the eastern bank of the Jordan River. Moshe understood that ensuring the peaceful life of the inhabitants is among the responsibilities of the religious leader, as well. A halacha in this same vein deals with the kohen gadol (high priest) and the arei miklat. One who kills accidentally must stay in an ir miklat until the death of the kohen gadol (Makkot 11a). This is seen as a semi-punishment for the kohen gadol, for under this arrangement, some people will pray for his death. The fault of the kohen gadol stems from the fact that he should have prayed that such tragedies not befall the Jewish people (ibid.). The gemara goes a step further, saying that even when the death took place before the kohen gadol's appointment, the freeing of the "murderer" depends on the present kohen gadol's death. The gemara explains that he should have prayed that the murderer not be sentenced (ibid. 11b). Our mentor, Harav Shaul Yisraeli, z.t.l., asked a strong question on this gemara. Who says there were any claims to exempt the murderer, and what good does it do to pray after the action is already done (Amud Hay'mini 11)? Rabbeinu Tam (Tosafot, Makkot 7a) says that dayanim can affect the outcome of a capital case by asking the witnesses intricate questions which need not be asked, but when they are answered unsatisfactorily, the testimony is disqualified. The idea behind these acquittals is found in the pasuk, "the congregation [Sanhedrin] will save the murderer" (Bamidbar 35:25). The mishna (ad loc.) brings an interesting machloket in this regard. Several tana'im state that had they been in Sanhedrin, capital punishment would have been very rare, and, according to R. Tarfon and R. Akiva, nonexistent. Rashbag countered that such a policy would have increased murder. What is the machloket between the different approaches? Certainly we don't want to kill anyone who might possibly not deserve it, but on the other hand, it is dangerous to effectively disarm the judicial system and thereby encourage crime. Rav Yisraeli explained as follows. R. Tarfon and R. Akiva claimed that Sanhedrin, as leaders of the nation, should take responsibility to spiritually elevate the nation. If they succeed, then exonerating possible murderers by loopholes would not cause deterioration of society's resolve to avoid deaths, intentional or accidental. Murder would remain an isolated phenomenon. Rashbag felt that even in an elevated moral climate, it is not worthwhile to chance matters. Based on this understanding, the kohen gadol's responsibility is clear, as well. Would the kohen gadol have succeeded, the moral climate would have been sufficient to allow Sanhedrin to employ "legal tricks" of the kind that Rabbeinu Tam mentioned. They could acquit an unintentional murderer without fear that this would encourage others to be negligent and cause unnecessary deaths. ========================================================= P'ninat Mishpat - Ona'ah (Mispricing) - part III-Difficulties in Setting a Price We discussed how mispricing by a sixth is a critical cut off point in regard to ona'ah. A frustrating issue in trying to apply the halachot in the modern market system is determining from which point to calculate the sixth. Is there always one going rate? Apparently at the time of the gemara, prices were pretty much set at a given time and place, and ona'ah was in relation to that going rate. However, in modern times, there are great price fluctuations, which depend on whether one shops at the local makolet (grocery), at the shuk, or on the internet, etc. It is, thus, no surprise that present-day poskim have to think more independently, based on the spirit and precedents of the classical sources (see Pitchei Choshen IV, 10:(1)). It appears clear, for example, that one could charge more by providing improvements not only in the object itself but even in ancillary factors relating to the "buying experience." For example, a store which invests in real estate (size, location), staff (sellers, more check-out counters), and interior decoration to provide a more calm and efficient buying experience can legitimately expect a return on their investments and charge a higher price (ibid.). A local grocery, which provides greater convenience, at the expense of volume, has a right to make a living. Thus, going rates need to compare and consider sellers of a similar type. So too, one who buys in bulk can expect to pay a lower price than a simple household does. ========================================================= Moreshet Shaul (from the works of Hagaon Harav Shaul Yisraeli zt"l) Executors of Will vs. Non-profit Organization - part II (from Chavot Binyamin siman 61) We introduced last week the case of a philanthropist who promised a non-profit organization money to build and died, and the executors of his will wanted to give the tzedaka portion of the will to other organizations. We mentioned, among other things, that there is a halachic doubt on the question if an oral pledge to tzedaka is binding. Since the other tzedaka organizations do not have possession of the money, the organization that was already promised money has precedence. However, we should consider this last point from a different angle. Although the present court case arose after the philanthropist's death, the doubt about the binding nature of his pledge existed as soon as he made the pledge. At that point, the philanthropist was alive and was the muchzak (in possession of his money). Thus, the matter should be decided that from a monetary perspective, the pledge was worthless. Even though, he had a halachic obligation to fulfill his neder, the personal obligation disappeared upon his death. From this perspective, then, the executors should not be bound by the pledge. There is, though, a final factor which may play a role. According to the testimony of the head of the organization and the philanthropist's widow, when the philanthropist was shown the building plans, he declared: "Go build it!" Such a statement is more than the pledge of a donation. It is the appointment of an agent to carry out the stated action(s). The outcome of such an authorization of agency is binding even without an act of kinyan (Shulchan Aruch, Choshen Mishpat 182), according to the agreed upon conditions. In this case, the sum of the pledge was the condition for fulfilling his instruction to build. We must determine whether the testimony of the head of the organization is valid. Certainly, the money is not to go to his pocket and, therefore, he is not a direct party to the case. Although receiving a significant sum of money makes the organization head's life simpler, this does not appear to create sufficient personal interest to invalidate his testimony. Were the philanthropist alive, he would need to take a Torah-level oath to contradict this testimony of one. This fact, together with other circumstantial evidence, while not sufficient to extract money in court, should not be ignored. Since the deceased himself was arguably obligated to pay during his lifetime, it is proper to initiate a p'shara (compromise) between the sides, by which the executors will pay the organization half of the disputed sum. ========================================================= Ask the Rabbi Question: In some shuls, the Torah is covered after the kriya, before the oleh (one who has the aliya) makes his second beracha. Doesn't covering the Torah make it considered as if it is not there, as it does with challot during kiddush? If so, can you make a beracha like this? Answer: Let us explain a few concepts, which we often take for granted, and then things should become clearer. The beracha which we make before the Torah reading is primarily a Bircat Hatorah, a beracha related to Torah study. The Tur (Orach Chayim 139) brings a doubt raised by his brother, R. Yechiel, in a case where one arrived late to shul and, as soon as he finished making his own, personal Bircot Hatorah, was called to the Torah. Could he make two consecutive Bircot Hatorah without a break? Their father, the Rosh, said that the oleh could make the beracha, because there was a takana (an institution) to honor the Torah by making a blessing before and after reading. The Rosh, though, agrees that the nature of the berachot of the oleh is of Bircat Hatorah. One doesn't need an open text upon which to make a Bircat Hatorah. Rather, it relates to the performance of the mitzva of Torah study, whether written or oral (see Berachot 11b), not to the physical text. The reason we open up and point to the place of the Torah reading before the beracha is so the oleh will know what he will be reading (Sha'ar Ephraim 4:3; Mishna Berura 139:16). After finishing the aliya, he knows what he is making the beracha on, namely, what he has just read. The Torah is covered between aliyot primarily out of respect for the Torah when it is, temporarily, not in use (Levush 139:5). There are two ways to cover the important part of the Torah, its words. One way is to roll it up; the other is to cover it with something external. The implication of the Rama (OC 139:21) is that rolling is a better covering than placing a cloth (see Mishna Berura 139:21). Long breaks require both coverings (ibid.). As far as we know, all sources and minhagim agree that the words of the Torah are covered in one form or another before the second beracha (Sha'ar Ephraim 4:21; Mishna Berura ibid.:20). An additional covering doesn't do any harm to the beracha. Whether or not we put on the cloth depends on the following. Are two coverings (rolling and cloth) necessary between aliyot? On this, there are different opinions (Sha'ar Ephraim, ibid.). Regarding your comparison to challot, it is interesting that there are those who specifically prefer them to be covered even during the beracha (Mishna Berura 271:44; Shemirat Shabbat K'hilchata 55:21). In both cases, we preferably hold the object to which the beracha relates. Among other things, this connects us to the objects. In both cases, the beracha is valid even if we neither see nor touch the object at the time of the beracha. ********************************************* Harav Shaul Israeli zt"l Founder and President Deans: Harav Yosef Carmel Harav Moshe Ehrenreich ERETZ HEMDAH 5 Ha-Mem Gimmel St. P.O.B 36236 Jerusalem 91360 Tel/Fax: 972-2-5371485 Email: eretzhem@netvision.net.il web-site: www.eretzhemdah.org American Friends of Eretz Hemdah Institutions c/o Olympian 8 South Michigan Ave. Suite 605 Chicago, IL 60603 USA Our Taxpayer ID#: 36-4265359

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