Explaining The Rashba - He Really Owes The Whole Thing - The Source of The Obligation Is Not In Doubt - Can Hungarians And Lithuanians Agree?

לזכות רבי אברהם יצחק בן אסתר

ורבי יוסף עזרא בן אסתר 

 וכל משפחותיהם

Continuing where we left off....

To explain the Rashba, Rav Baruch Ber [Birkas Shmuel 2-3 I believe] answered similarly to what the Chasam Sofer said. Rav Baruch Ber was from Lithuania while the Chasam Sofer was from Hungary. But Hungarians and Lithuanians are allowed to agree. My wife's family is originally from Russia [like 100 years ago] while mine is from the Hungary [on one side] and Poland [on the other] areas, yet at times, we even agree on things. He said that the issue is whether קרן מחוברת is included in the איסור of ולא ישמרנו בעליו or not. That is why this is an "איסור" question and not a "ממון" one. 

This, however, raises a few difficulties, one of which is [as we mentioned already] that the Rashba never said that this is a איסור question, just that we are מחמיר as if it were. 

Many many sefarim deal with this Rashba and attempt to explain him. 

Rav Nosson Geshtetner [נתן פריו סוגיות ח"א סי' י"ח] answered at some length that according to the opinion [15a] that paying half damages is ממון [and not קנס], the real obligation is to pay the entire sum of the damages, just Hashem went easy on him. That being the case, when we are in doubt [like in our gemara's case] we start with the presumption that he must pay the whole thing and just wonder if he is lucky enough to receive an exemption. That spells being מחמיר. In a usual case of ספק ממון, our base assumption ["base assumption" is a הוה אמינא in a Beis Medrash - get it?] is that he need not pay, so מספק we can't obligate. But here, our starting point is that he must pay the whole thing and our doubt is whether we can let him off. That explains why we obligate him מספק as we stick with his חזקת חיוב and he must pay.   

Rebbe Abba Berman [שיעורי עיון התלמוד ב"ק שיעור ח] explained the Rashba to mean that in normal cases of ספק ממון the מחייב, what obligates him to pay, is the ממון, the monetary obligation. So if we have a doubt as to the מחייב we can't make him pay. ספק ממונא לקולא. But here, the מחייב is נזיקין and thus there is no doubt about the עצם מחייב. We KNOW that his ox damaged and that he must pay, we just have a doubt as to how much he owes. In such an instance we go לחומרא.

[According to both answers, the Rashba holds that, strictly speaking, it is a ממון issue and not an איסור issue, as he implies with his choice of words]. 

SO MUCH MORE TO SAY!!!!!:-):-) I hope we can say it. 

A Tale Of Two Women

When Diabetes Strikes

My-seh: There are two women I know somewhere in the United States [unless they are fictional] who had a similar predicament. 

One woman had a few children and was then diagnosed with diabetes ל"ע. The doctors warned her that having more children would be hazardous to her health and endanger her life. In addition, she had very very little money to live on, adding to the stress of raising her very difficult children. 

The other woman had two girls at which point the doctor told her that she has diabetes and that having more children would be hazardous to her health and endanger her life. Money wasn't a problem in her home but health now was. 

The first woman elected to continue having children. She is up to about number 10 [with possibly more to come]. No money, challenging children [very......] and diabetes. She moves forward. 

The second woman took her doctor's advice, stopped having children and came to terms with the fact that she would have just two. Then she found out [after it was too late] that her doctor goofed. She didn't have diabetes after all. Goofy doctor!!!

Li-myseh:

Doctors Are Fallible - Get A Second Opinion

1] In 1999, the Institute of Medicine published the famous "To Err Is Human" report, which dropped a bombshell on the medical community by reporting that up to 98,000 people a year die because of mistakes in hospitals. The number was initially disputed, but is now widely accepted by doctors and hospital officials — and quoted ubiquitously in the media.

In 2010, the Office of Inspector General for the Department of Health and Human Services said that bad hospital care contributed to the deaths of 180,000 patients in Medicare alone in a given year.

Now comes a study in the current issue of the Journal of Patient Safety that says the numbers may be much higher — between 210,000 and 440,000 patients each year who go to the hospital for care suffer some type of preventable harm that contributes to their death.

That would make medical errors the third-leading cause of death in America, behind heart disease, which is the first, and cancer, which is second.

Dr. David Mayer, vice president of quality and safety at Maryland-based MedStar Health, said people can make arguments about how many patient deaths are hastened by poor hospital care, but that's not really the point. All the estimates, even on the low end, expose a crisis, he said.

"Way too many people are being harmed by unintentional medical error," Mayer said, "and it needs to be corrected."

   

DON'T BELIEVE IN DOCTORS. BELIEVE IN G-D. HE IS INFALLIBLE. They make mistakes all the time. That doesn't mean you shouldn't go to doctors. Just that you should be a bit wary. Ideally, of course, one should never get sick. Then you avoid the whole problem. 

Our Surroundings Influence Us

2] Who was right? Woman number 1 or woman number 2? I am not here to judge but I will say this. Woman number one comes from a community where a woman's main task is seen as being to have many children. Woman number two comes from a community where the families are smaller and a woman usually has broad involvement in the outside world [i.e. a career, hobbies etc.].

I don't think that it would be going out on a limb to say that the communities that these respective women came from influenced their decisions. So the lesson is - we don't live in a vacuum. Our surroundings influence our decisions - even those that involve life or death. 

NO EXCUSES

3] I am not here to say that woman one is correct in her decision to keep having children, above and beyond what she can physically manage. Most healthy, robust women wouldn't manage in her situation. She also lived on the 4th floor with no elevator, which meant constant schlepping of children and packages up and down many stairs. But I will say this - she had every excuse to make life easier for herself and to stop having children. Yet, it was so important to her she trudged on. 

When something isn't important to us, we often make excuses. When something is important enough, we do it, despite any extenuating circumstances.

A few days ago a chashuv Baal Tzdaka from LA was niftar, named Mr. Sol Teichman [I didn't know him personally but I know his brother]. When he was a young man, he was on a death march to Dachau. His brother, who was a foot taller than he was, said that he had no more energy and thus risked being shot dead by the Nazis for not marching on in line. Mr. Teichman CARRIED HIS BROTHER ON HIS BACK. For how long? He said that he doesn't know how he did it but they told him that the march was SEVENTY MILES. 

This is something to think about next time we make excuses.....  

Who Serves Who?

The other day a man [Yemenite - if that matters] came into shul collecting money. He related that he has a 34 year old daughter was born mentally ill. She needs dental treatment that will cost from 80 to 100 thousand shekel [she needs full anesthesia]. In addition, his wife is physically ill so he must run the home and can't work. He is also heavily in debt from marrying off numerous children. To top it all off, two of his married sons are having infertility problems, so he took upon himself to pay for their treatments as well. 

I was, to say the least, not comfortable with the last part of his story [not that the entire story wasn't heartbreaking]. Why does this poor suffering, not young man, have to pay for his children's fertility treatments?? If he had the money - all the power to him. But he doesn't. He has to go from neighborhood to neighborhood begging. How can they let him do that?? [I expressed this to him after apologizing for budding in - he was less than receptive to my objections. I probably should have kept my mouth shut]. Maybe I don't know the whole story so I will leave my judgments aside and talk about the principal of the matter.  

The Gemara in Kiddushin [45] says that while a parent may be a שליח [agent] to marry off his child [i.e. the parent of the boy goes to the girl and hands her money in front of two witnesses in order to effect a marriage between her and the son], it is not fitting for the child to ask him to do so. The gemara calls it CHUTZPAH [!!!]. OUR PARENTS DON'T WORK FOR US!!! We "work" for them. The poskim cite this gemara as a source that one is not permitted to ask his parent to service him. It is only permitted if the parent is absolutely מוחל on their כבוד. So when your mother serves you dinner - she is THRILLED TO DO IT ["eat more - you're so skinny"]. Pure מחילה. She wouldn't have it any other way. But to beg door to door on behalf of a child? I believe that this is not a classic case of forgiving their honor but more - it is a case of a parent disgracing himself [בזיון] on the child's behalf. No child may allow for this to happen. A parent cannot be מוחל on their בזיון.  

As children, we get accustomed to our parents serving us. As we mature both physically, emotionally and spiritually, we must be careful to make a switch in our brains and realize that we are here to serve them.

Rav Shraga Feivel - No Personal Bias

Regarding what I said in the previous post about how we are all working for the same Boss: 

Yesterday was the yahrtzeit of Rav Shraga Feivel Mendelevitz. He was one of the major builders of Torah in the US. Although he was the Principal of Yeshivas Torah Vo-daas, that didn't stop him from helping other Yeshivos. So when Rav Aharon Kotler was trying to start his Yeshiva in Lakewood - Rav Sharaga Feivel sent him his own students. When Rav Yitzchak Hutner became Rosh Yeshivas Chaim Berlin  - Rav Sharaga Feivel sent him his own students. And to other yeshivos as well. 

People thought he was crazy. Who sends away good students from his own yeshiva to help the competition?? Students mean tuitions, donations, self-fulfillment etc. etc. Sending them away threatens everything. Seemingly. 

Rav Shraga Feivel understood that it wasn't about his own success but about spreading Hashem's Torah.

Would that happen today? When one yeshiva has low enrollment, would another competing Yeshiva send them students to help them keep going?? Unheard of.

When someone starts a Yeshiva - do other established Yeshivos send him their boys? I know someone who had this very experience. He tried to start a Yeshiva and could find nobody interested in sharing a few students to help him get going. 

So we see the greatness of Rav Shraga Feivel!! And the flourishing of Torah in America [and in Eretz Yisrael who received so much bounty of Torah from American Bnei Torah] is a testimony to his greatness, Ahavas Torah and Ahavas Hashem.   

MAY WE ALWAYS PUT ASIDE OUR PERSONAL BIASES FOR THE GREATER GOOD!!:-)

AMENNNNNN!!!

I Am NOT Complaining - What Is The Secret? -THANK YOUUUUUU!!!!!

The Jews in the desert complained. It wasn't a happy ending for them.

So just asking. 

A Torah website is having an on-line fundraiser to raise 50 thousand dollars in one day. They are 75 percent of the way there. KEYN YIRBU!!!  Hope they raise triple that!!!

But when I tried to raise for my website [which we are very busy working on and coming towards the completion] barely 3 thousand dollars were raised in 2 months [short of the five thousand needed].  

So I say like this - EVERYTHING given for Torah is SUPER-DUPER-DUPER-DUPER. I am not in competition with anybody. We all work for the same Ribbono Shel Olam. Same team. Same team Owner.

But what is the secret of so many causes that raise so much more than I am able to for the causes for which I fundraise?

In their email they say "... as a token of appreciation for your generous donation you can receive raffle tickets to win fabulous prizes such as a paid vacation to anywhere in the US, a complete set of ArtScroll Shas, and much more, and also receive free gifts with a minimum donation."

Maybe it is because I don't do raffles, sweepstakes, offer prizes, hire public relations companies, promise people that every dollar they give will be matched etc. etc. That might have a lot to do with it. 

So what I want to say to those who gave - YOU DIDN'T DO IT FOR PRIZES SUCH AS PAID VACATIONS ANYWHERE IN THE U.S. AND MUCH MORE. You gave because you are a kind hearted person who cares about Hashem and His Torah. And for THAT your giving is worth so much more and will be rewarded with more than a trip to sunny Palm Springs or a rustic area of Montana. לנצח נצח נצח נצחים. And more importantly - you gave Hashem nachas ruach.  

So thank you for being my partner in spreading the Light!!!!

BI-AHAVA RABBA,

ME 

Chasam Sofer - When Do We Go לקולא in דיני ממון And When לחומרא? - Comments On His Answer

לזכות גילה שושנה בת נעכא גיטל לזש"ק

To explain the Rashba wrote the Chasam Sofer: 

שו"ת חתם סופר חלק ב (יורה דעה) סימן רמא

א"כ כ"ע מודי' דבכל ספק ממונא קולא לנתבע אף על פי שהוא איסור עושק וגזל ואונאה וריבי' וכדומה מ"מ הכל קולא. וטעמא נ"ל הנה בכל מצות עשה שבתורה שמכין אותו עד שתצא נפשו אין רשות לירד לנכסיו כדי שיניח תפילין או יעשה סוכה ונ"ל הטעם משום דלמא נפקא מיניה בנין דמעלי וכבש"ס בבא קמא דף קי"ט ע"א ואפילו מאן דפליג במסור מודה בשאר איסורים. אך באיסורים הנוגעים בממון כגון מצוה לפרוע חוב ולהשיב גזל ואונאה וריבית עד שמכין עד שתצא נפשו מוטב לירד לנכסיו ואי משום בנין דמעלי הלא זה הממון אינו שלהם ויתמי דאכלי דלאו דדהו ליזלו בתר שבקיהו.

אך כל זה בודאי אבל בספק אף על גב בשאר ספק אי' דאורי' דלהחמיר נמי מכין אותו עד שיסיר מספק איסור מ"מ הכא בס' ממון אין מכין אפילו בגופו דעל ידי יסורי גופו יתן הממון המסופק ואולי נפקי מיניה בנין דמעלי ולדידהו לא הוה ספק איסורא דאינהו לא עבדי איסור ולא מוטל עליהם מצות פריעת בעל חוב ולא השבת גזילה וספק ממון דידהו קולא לנתבע על כן ספק ממונא לקולא אף על פי דכל ממונא אית ביה איסורא. 

אמנם בניזקין מילתא אחריתי היא דעיקור ענין נזיקים היא גדר למ"ע ונשמרתם מאוד לנפשותיכם ואל תעמוד על דם ריעך וכתיב והיה עליך דמים עיי' מסכתת מועד קטן דף ה' ע"א ושיער הקדוש ברוך הוא בחכמתו שאם יתחייב התם כך והמועד כך ובור כך ורגל כך וכדומה בזה נגדר הדבר וכל אחד ישמר נזקיו, ואם אנו מסופקים אם קרן מחובר די לו בשמירת תם או בשמירת מועד ספיקו להחמיר וכן כל מה שאנו מסופקים בכוונת הקרא צריכים להחמיר מספק איסורא. אמנם שוב כל ספק שנולד אחר כך אם היה המעשה כך או כך או אם הלכה כפלוני או כפלוני בזה אזלינן לקולא לנתבע ככל ספק ממונא אף על גב דאית ביה איסורא כנ"ל. ואתי שפיר דברי הרשב"א הנ"ל בעזה"י. 

When we are not sure what the pasuk means, we go לחומרא, even in monetary matters. The reason is that since the חיוב to guard one's property from damaging is related to the pasuk ונשמרתם מאד לנפשותיכם, it has the status of איסור and not ממון. It is only when we are not sure WHAT HAPPENED and we need to know how much he is obligated to pay that we go לקולא in favor of the נתבע. 

הערת הקטן מגבעת זאב: I see how that resolves questions 1 and 2 [and maybe 3?] but not questions 4-5. 

Also, Rav Yaakov Rosenthal z"l [he was an Av Beis Din in Chaifa and the author of the Mishnas Yaakov on the Rambam] pointed out that the חתם סופר says that ספיקו להחמיר מספק איסורא is not precise. The Rashba never said that our case is ספק איסורא but that ספיקא דידהו להחמיר כאיסורין. We are מחמיר as we would be for איסור but not that it is actually a case of איסור.   

Rav Nosson Geshtetner [נתן פריו סיגיות ח"א סי' י"ח] noted that the Chasam Sofer's thesis only works with bodily damages that are related to the pasuk ונשמרתם מאד לנפשותיכם but not to ספיקות in monetary damages. In such instances we should go לקולא in cases of ספק. So how can the חתם סופר say that נזיקין are a גדר for the pasuk ונשמרתם מאד לנפשותיכם?

To be continued, I hope....

Sacrificing Sisterhood

Jonathan Marks 

Commentary Magazine

Much has been written here at COMMENTARY about Harvard’s ill-conceived war on “unrecognized single-gender organizations.” At issue are fraternities, sororities, and Harvard’s famously exclusive “finals clubs.” All of these groups already lack official status at Harvard, but starting with the class of 2021, Harvard promises to punish anyone who dares to join one. Such heretics “will not be permitted to hold leadership positions in recognized student organizations or on athletic teams.” They will also “not be eligible for letters of recommendation” from the Dean’s office for scholarships, including the prestigious Rhodes and Marshall, that require such a recommendation. In the name of inclusion, they must be excluded.

As Harvard explained, “the final clubs, in particular, are a product of another era, a time when Harvard’s student body was all male, culturally homogeneous, and overwhelmingly white and affluent.” Which is why—I wish I were kidding—sororities must be destroyed. On August 5th, Harvard’s chapter of Delta Gamma sorority announced that it would shut down. Wilma Johnson Wilbanks, president of Delta Gamma’s national organization, said that Harvard’s new policy “resulted in an environment in which Delta Gamma could not thrive.”

Harvard has gamely asserted that the sororities are part of the same ancient culture of privilege and exclusion as the finals clubs. And sororities play a minor role—the main villains are the “deeply misogynistic” all-male finals clubs—in the 2016 report on sexual assault at Harvard that launched the push for the new policy. But Harvard’s Delta Gamma chapter, founded in 1994, is an unintended casualty of a policy designed to crush all-male clubs. Harvard had initially planned to allow female-only clubs to remain “gender-focused” for five years after the new policy went into effect. As the Foundation for Individual Rights in Education, a critic of the new policy, pointed out, such special treatment probably would have violated Title IX, a civil rights law that governs campuses that receive federal funding.

The relevant section of Title IX reads, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX would seem to prevent Harvard from punishing men for belonging to all-male fraternities if it does not also punish women for belonging to all-female sororities.

Although one cannot prove that a lawyer whispered in Harvard’s ear, this Title IX problem may well explain why Harvard quietly dropped the five year grace period for sororities. But it might also explain why sororities were dragged into the new policy in the first place. If Harvard had gone to war solely with all-male clubs, its lawyers would have had the hard task of explaining why, under Title IX, a university can “decide that women’s groups can exist but men’s cannot.”

To win its war against misogyny, Harvard had to sacrifice sisterhood.

After all, Harvard’s justification for attacking single-sex organizations made liberal use of the term “diversity.” The university undoubtedly sympathized with the protesters who, reading out of the diversity playbook, insisted that all-women organizations are “safe spaces” for women. “Change is hard,” they said. What they meant was: “if we want to protect women we’ll need to take away their freedom of association.”

If you want to make a social justice omelet, you have to break some eggs.