Daf Ditty Beitza 40: Hadran

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MISHNA: With regard to one who had produced in a different city beyond the Shabbat limit,
and the residents of that city where the produce was located joined the Shabbat boundaries,
enabling them to reach the owner’s home on the Festival, and they wish to bring him some of his
produce, they may not bring it to him. His produce is as his feet; since it is outside of his Shabbat
limit, it may not be taken from its place. However, if the owner placed an eiruv to enable travel
to that city, the legal status of his produce is like his status with regard to the Shabbat limit. People
from that city who also placed an eiruv may bring the produce to him, since he himself may walk
to the produce and take it.

With regard to one who invited guests to visit him from a town beyond his Shabbat limit, and
they joined the Shabbat boundaries to enable them to reach his house, they may not carry in
their hands back to their town any portions they received from him as gifts. These portions are
as the feet of the host since they belonged to him on the eve of the Festival. This is true unless he
transferred ownership of their portions to them on the eve of the Festival, in which case the
gifts may be carried wherever the recipients may walk.

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GEMARA: It is stated that amora’im disagreed with regard to one who deposits produce with
another for safekeeping: In whose possession is the produce with regard to determining its place
of rest over the Festival? Rav said: They are as the feet of the one with whom they were
deposited. And Shmuel said: They are as the feet of the object’s owner. The Gemara suggests:
Let us say that Rav and Shmuel follow their usual line of reasoning, as we learned in a mishna:
If one brought in his produce or his ox to another’s courtyard with his permission, the owner of
the courtyard is liable for any damage caused to them. And Rabbi Yehuda HaNasi said: The
homeowner is never liable for damages unless the homeowner explicitly accepts upon himself
the responsibility to watch them.

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And Rav Huna said that Rav said: The halakha is in accordance with the statement of the
Rabbis, who disagreed with Rabbi Yehuda HaNasi, and that Shmuel said: The halakha is in
accordance with the opinion of Rabbi Yehuda HaNasi. If so, let us say that Rav spoke here in
accordance with the opinion of the Rabbis, with the following reasoning: Just as when one gives
permission to store something in his yard, that object is under his jurisdiction concerning monetary
responsibility, so too, it is in his jurisdiction concerning the establishment of the Shabbat limit.
And Shmuel spoke here in accordance with the opinion of Rabbi Yehuda HaNasi: When a
homeowner gives permission to store something in his yard, the object is not in his jurisdiction,
whether with regard to monetary responsibility or with regard to the Shabbat limit.

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The Gemara rejects the comparison: Rav could have said to you: I said my statement in this case
even in accordance with the opinion of Rabbi Yehuda HaNasi. For Rabbi Yehuda HaNasi stated
his halakha only there, that an object brought into a courtyard is not considered in the possession
of the homeowner with regard to monetary responsibility, because in the ordinary situation one
who allows someone to bring items into his courtyard does not accept upon himself the
responsibility of watching them. But here, the homeowner has accepted upon himself the
responsibility of watching the produce, and consequently it is as his feet.

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And similarly, Shmuel could have said: I said my statement here even in accordance with the
opinion of the Rabbis, as the Rabbis stated their opinion only there, maintaining that the objects
are considered in the jurisdiction of the homeowner, because it is a person’s, i.e., the owner’s,
preference that his ox or other object be established in the jurisdiction of the owner of the
courtyard, so that if his ox does damage to the homeowner’s property the owner will not be
liable. But here, is it a person’s preference for his produce to be in another’s jurisdiction with
regard to the establishment of its Shabbat limit? It is certainly inconvenient for him to have his
produce out of his Shabbat limit. Consequently, the two disputes between Rav and Shmuel are not
necessarily connected.

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The Gemara asks concerning Rav’s opinion: We learned in the mishna: However, if the owner
placed an eiruv, the legal status of his produce is like his status. And if you say that deposited
produce is as the feet of the one with whom they were deposited, even if the owner of the
produce placed an eiruv, what of it? The produce is under the jurisdiction of the people in the
other town with whom it was deposited. It should be as their feet, not as the feet of the owner. Rav
Huna said that the Sages of the school of Rav said in reply to this question: The mishna is dealing
with a case where the keeper designated a corner of his house for the owner, thereby revealing
his intention that the produce is not considered in his own jurisdiction but rather in that of the
owner. Consequently, it remains as the feet of the owner.

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Summary

Introduction1

This mishnah deals with a person whose produce is in another town and he wishes to retrieve it on
Yom Tov.

If one has his produce in another town, and the inhabitants of that city made
an eruv in order to bring to him some of his produce, they may not bring it to
him.

In the case under discussion here the inhabitants of the other city made an eruv that would allow
them to get to the city of the owner of the produce. Nevertheless, they may not bring him his
produce because his produce is limited by where he can go and since he didn’t set up an eruv to

1
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Mishnah&lang3=en

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get to the other city, it can’t come to him. Again, a person’s things are limited to going where he
may go.

But if he himself made an eruv, his produce is like himself.

If the owner of the produce set up an eruv then he can go to the other city and bring his produce
back with him. It is irrelevant whether the people of the other city set up an eruv since they are not
the owners of the produce.

Today we complete Masechet Beitza.2 I went into this masechet knowing nothing of the topic to
come. An egg? What are we going to learn in this chapter about an egg? However, Beitza
increased my understanding of how and why Festival practice is different from - and similar to -
weekday and Shabbat practice. I also learned about a number of principle and concepts that were
helpful in better understanding everything that I am reading.

Looking at a new Mishna that began yesterday, the rabbis wonder how to manage gifts brought on
Shabbat by a guest/s. Should the gift be given before Shabbat altogether? If so, can the receiver
and the giver both walk together within the eiruv, of course, with the gift? The Gemara argues
about how we can determine the jurisdiction of an object in different situations. They want us to
know its ownership and where it 'belongs'.

The notion of eiruv and boundaries are fascinating. Something physical, usually food, defines the
extension of an area. This assumes that humans are entitled to a 'home base'; a place where we
can be comfortable to live without restrictions on carrying, for example. Now we learn that other
individual items should have their own 'home base' as well.

The rabbis consider a case where meat is hung on the door for a time. If one hangs the meat
himself, the meat is allowed. If the meat is hung by someone else and thus not observed at all
times by its (trustworthy) owner, it is prohibited. The important factors include what object is
being discussed, what time it might be transferred to another person or place, who owns the object,
and more.

We are introduced to a final Mishna as Masechet Beitza comes to a close. In that Mishna we are
told that on Festivals, we are not to water or slaughter animals that sleep in the desert, ie. outside
of the city limits. Those animals are considered muktze, as we would not be thinking of them
before the Festival begins. However, we are to care for our animals in the city, as they are
considered 'domesticated'.

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The Gemara clarifies a number of points. Watering comes before slaughtering because watering
an animal before killing it will help with the removal of its skin after death. A horrible
thought. The Gemara looks to grazing habits according to the time of year and other factors to
determine whether or not an animal is domesticated.

These desert animals are thought to be similar to drying figs, which are also muktze, even thought
they could be eaten earlier. Because we know that we are drying the figs, we do not think of them
as food and they are not thought of -- and thus they are muktze.

We end where we started - with a discussion of what is muktze. For me, the concept of muktze
was new when I began this masechet. I can say that learning the past 40 dapim have helped me to
gain a better understanding of the concept of muktze.

THE "TECHUM" OF AN ITEM DEPOSITED WITH ANOTHER

Rav Mordechai Kornfeld writes:3

The Gemara discusses the question of whose Techum an item acquires when the owner gives it to his
friend for safekeeping before Shabbos or Yom Tov ("ha'Mafkid Peros Etzel Chaveiro"). Rav says that
it acquires the Techum of the person who watches it, while Shmuel says that it acquires the Techum
of the owner. Shmuel's reasoning for why the item acquires the Techum of the owner is because a
person does not want his fruit to have someone else's Techum on Shabbos or Yom Tov.

The Mishnah earlier (37a), however, seems to contradict Shmuel's ruling. The Mishnah discusses the
case of a person who gives his animal to a shepherd on Yom Tov. The Gemara says that the animal
acquires the Techum of the shepherd. Similarly, the Mishnah (37a) states that when a person borrows
a utensil from his friend on Erev Yom Tov, the utensil acquires the Techum of the borrower. Since a
borrower (Sho'el) has the status of a Nifkad, one with whom an object is deposited for safekeeping, the
case of the Mishnah there is the same as the case of the Gemara here. Why does Shmuel say that an
item deposited with a Nifkad acquires the Techum of its owner, when the Mishnah says that it follows
the Techum of the Nifkad?

In both of the earlier cases (the animal deposited with the shepherd, and the utensil in the possession
of the borrower), the item moves with the person with whom it was deposited. The shepherd takes the
animal to graze in the pasture, and the borrower takes the utensil to wherever he needs to use it. In such
cases, the person who watches the item is expected to walk around with it, and thus the owner certainly
intended that his item should acquire the Techum of that person (see Rashi here, DH k'Raglei
ha'Ba'alim).

3
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In contrast, in the case of the Mishnah here and in the case of the dispute between Rav and Shmuel,
the object is merely deposited for safekeeping and is not moved from place to place. In such a case the
owner does not want to relinquish his own Techum from the fruit because he might want to take the
fruit to his home on Shabbos or Yom Tov and eat it. The owner does not expect the Nifkad to take the
fruit with him anywhere, and he retains the option to take back the fruit on Shabbos or Yom Tov.

Rav, on the other hand, compares this case to the cases of the shepherd and the borrower. He maintains
that since the owner knows that there is a possibility that the Nifkad will need to move the fruit and
take it with him to some other venue, and since he has no plans to use the fruit on Shabbos himself, he
allows the fruit to acquire the Techum of the Nifkad. Rav agrees, however, that in a case in which the
owner clearly intends to take back his item on Shabbos the item retains the Techum of the owner (as
in the cases discussed later in the Gemara).

ITEMS OF MUKTZAH ACCORDING TO REBBI SHIMON

The Gemara quotes Rebbi who disagrees with the Beraisa's definition of "Midbariyos" animals. The
Gemara asks that Rebbi's statement here seems to contradict his statement elsewhere. Rebbi's statement
here implies that he follows the view of Rebbi Yehudah who espouses the general concept of Muktzah
(for this is the subject of the Mishnah which discusses Behemos Midbariyos). Elsewhere, however,
Rebbi implies that he agrees with Rebbi Shimon who maintains that there is no general concept of
Muktzah. Rebbi says that Rebbi Shimon agrees that Muktzah is prohibited only in the case of Grogeros
and Tzimukim (figs and raisins set out to dry, which a person definitely intends not to use on Yom
Tov).

The Gemara suggests in one of its answers that although Rebbi Shimon agrees with the concept of
Muktzah only in the case of Grogeros and Tzimukim, Behemos Midbariyos are comparable to
Grogeros and Tzimukim. RASHI explains that the reason why Rebbi Shimon agrees with the concept
of Muktzah in the case of Grogeros and Tzimukim is because those items meet the two conditions
necessary to be prohibited as Muktzah. First, the person consciously excluded them ("Docheh
b'Yadayim") from use on Yom Tov by leaving them on the roof to dry. Second, when the owner took
them to the roof he rendered them unfit for use on Yom Tov (since fruit that begins to dry is inedible).
Rashi explains that Behemos Midbariyos are like Grogeros in this regard because the person actively
excluded them from use on Yom Tov (see also Rashi in Shabbos 45b).

In what way did the person actively exclude ("Maktzeh b'Yadayim") the Behemos Midbariyos from
use? In the case of Grogeros and Tzimukim, he placed the fruit on the roof and thereby actively
excluded them from use. In the case of Behemos Midbariyos, what action did he do to the animals to
show that he had no intention to use them on Yom Tov?

(a) The ME'IRI explains that the Gemara refers to Behemos Midbariyos which a person sent away
from the town. Apparently, he did not want them to sleep in the town (perhaps because they have a bad
smell or make loud noises).

(b) Perhaps Rashi relies on the logic he presents earlier (24b, DH Im Yesh). Rashi there writes that
Rebbi Shimon agrees with the concept of Muktzah in the case of an object of Muktzah which is
attached to the ground (such as fruits attached to a tree) because the fact that the person did not pick
the fruit before Yom Tov indicates that he actively excluded it from being used on Yom Tov.

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Consequently, even if the fruit falls from the tree on Yom Tov it remains Muktzah and he may not eat
it.

The only case in which Rebbi Shimon argues with Rebbi Yehudah and permits an object which is
Muktzah Machmas Isur is a case like that of a candle which was aflame during Bein ha'Shemashos at
the onset of Shabbos. Although the person intentionally left the flame kindled before Shabbos (a
possible indication that he intended to exclude the oil in the lamp from use on Shabbos), Rebbi Shimon
still permits him to take the oil on Shabbos (after the flame has gone out). The reason the person did
not extinguish the candle before Shabbos was because he wanted it to give light during the night, and
not because he intended to exclude the oil from use for all of Shabbos.

In contrast, an object forbidden at the onset of Shabbos which could have been prepared before Shabbos
(but was not) is Muktzah even according to Rebbi Shimon. (This is what the Gemara in Shabbos (47b)
means when it says that Rebbi Shimon permits Muktzah Machmas Isur only when one is "Yoshev
u'Metzapeh" for the object to become permitted.)

The same reasoning applies in the case of Behemos Midbariyos. Corralling the animals involves
considerable effort and trouble on Yom Tov (as Rashi says in Shabbos 45b). Since it is very difficult
to corral the animals on Yom Tov, one should have arranged to bring them in before Yom Tov if he
wanted to use them on Yom Tov. The fact that he did not arrange to bring them in before Yom Tov
shows that he actively excluded them from use on Yom Tov.
The other opinions in the Gemara here -- which say that Behemos Midbariyos are not like Grogeros
and Tzimukim -- maintain that even though corralling the animals involves considerable effort, one
still is permitted to bring them in on Yom Tov.

Consequently, the fact that he was not punctilious in bringing them in before Yom Tov does not show
that he actively excluded them from use. In the case of fruit attached to the tree, Rebbi Shimon agrees
that the fruit is Muktzah because there is no possible way to pick the fruit on Yom Tov. By not getting
the fruit before Yom Tov, the person showed that he intended to exclude them from use on Yom Tov.

Steinzaltz (OBM) writes:4

As we have discussed on the previous dapim, both a person and his possessions are limited by the
rules of techumim (boundaries) on Shabbat and Yom Tov. Therefore, a person cannot walk more
than 2000 cubits outside of his city on Shabbat or Yom Tov. By creating an eruv techumim – a
meal placed on the perimeter of the 2000 cubit limit – he can extend the area that he is permitted
to walk 2000 cubits in that direction (although what he has actually done is shifted the circle in
which he is permitted to travel so that its center is no longer in the city, but at one edge of the city
limits).

The Mishnah on our daf teaches that a person who has guests come and visit on Yom Tov from the
next city (i.e. they created an eruv techumim that allowed them to travel to him; he did not create
such an eruv so neither he nor his possession can go to their city), cannot give them food to take

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back home with them, since the food belongs to him and is therefore limited to areas that he is
allowed to go to.

In analyzing this rule, the Gemara relates a story about Rav Hana bar Chanilai, who visited a
nearby city – and prepared a proper eruv techumim – prior to the onset of Yom Tov. He received a
present of meat before the holiday that he placed in the room where he was staying. When he
awoke on the morning of Yom Tov, he was unsure as to whether he could take the meat back to his
city, and he turned to Rav Huna with his question. Rav Huna told him that he could take it home
if he was the one who placed the food in his room, but if it had been placed there by the hosts then
it remained in their possession and it could not be taken.

From this story, the Gemara wants to try to prove a number of issues regarding the rules
of techum and eruv on Yom Tov. Its conclusion, however, is that Rav Huna’s ruling did not involve
rules of techum and eruv and was unique to Rav Hana bar Chanilai5 who was such a scholar that
he regularly focused on his Torah study and paid little attention to mundane goings on around him.
Rav Huna ruled that if he had placed the meat in the room himself, he probably had paid attention
to it, so it was fine, but if his hosts had put it there, he did not pay sufficient attention to it, and it
could not be used.

Rashi explains that the concern here was for basar she-nitalem min ha-ayin – meat that was not
under constant watch. This rule stems from a concern lest the meat be switched with non-kosher
meat so the Sages ruled that when such a switch can occur, meat needs to be under constant
supervision or else have a symbol attached to it so that it can be recognized as kosher meat.
The Me’iri suggests that had he placed the meat in his room he could be certain that it was in the
place and position that he had put it, which would have solved the problem. In any case, the
Gemara concludes that no rules about techum and eruv can be derived from this story, which was
concerned with an entirely different matter.

5
S. Mendelsohn writes: Babylonian scholar and philanthropist of the third century; the junior of Huna I. and Ḥisda (Beẓah 21a,
40a). The Talmud relates of him that he was wont to employ scores of bakers in the preparation of bread for the poor, and that his
hand was ever in his purse, ready to extend help to the needy. His house was provided with entrances on all sides, that the wayfarer
might the easier find entry, and none ever left it hungry or empty-handed. He would leave food outside the house at night, that
those who felt shame in soliciting might help themselves under cover of darkness. Eventually his house was destroyed. 'Ula and
Ḥisda once saw the ruins; Ḥisda was much moved at the sight, and when 'Ula inquired the cause of his emotion, Ḥisda acquainted
him with its former splendor and hospitality, adding, "Is not the sight of its present condition sufficient to force sighs from me?"
'Ula, however, replied, "The servant should not expect to fare better than his master: God's sanctuary was destroyed, and so was
Ḥana's house; as the former, so will the latter be: God will restore it" (Ber. 58b; comp. Meg. 27a). Notwithstanding his learning
and his wealth, Ḥana was extremely modest and obliging, ready even to lift physical burdens from the shoulders of the worthy.
Huna once carried a shovel across the street; Ḥana met him and at once offered to relieve him. Huna, however, would not permit
it. "Unless," said he, "thou art accustomed to do such things at home, I cannot let thee do it here: I will not be honored through thy
degradation" (Meg. 28a).
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 Divvying Up the Leftovers
Sara Ronis writes:6

We’ve made it to the end of another tractate! And what a tractate it’s been: It all started with
a debate about eggs and discussions of the minutiae of cooking, as well as carrying and sacrificing
on festivals. It also brought us many stories about rabbis and their adventures, and lots of biblical
interpretation to boot. We learned why Jews outside the land of Israel celebrate two day festivals,
the origin of the notion that we receive an extra soul on Shabbat, sat in on a debate about the
wording of the Amidah, learned something about the history of Talmud manuscripts, and much
more. It hasn’t been an easy tractate, but it’s been a rich one for us to learn together. Mazal tov!

One of my favorite things about the Jewish holidays is all the delicious food. Many of us have
been guests (or hosts) at tables groaning under the weight of delicious holiday food, more food
than guests can reasonably eat. Of course, leftovers cause their own problems — even more so in
the days before refrigeration. Today’s daf therefore asks a very important leftover-related question:
Given that carrying over long distances is not permitted on festivals, if one is invited to someone
else’s house for a holiday meal, can they carry home leftovers?
The mishnah at the top of today’s daf tells us that:

One who invited guests, they may not carry any portions (of the food) in their hands unless he
transferred ownership of their portions to them on the eve of the festival.

We’ve already learned that there are strict limits to how far anyone can travel on Shabbat and
festivals. We’ve also learned that those distances are calculated individually, for each specific
person relative to their home, their personal property, and their regular routine.

According to the Gemara, then, the only way that these guests can take home leftovers is if the
host intentionally designated them owners of their portion of the feast before the holiday started.

But, you may be thinking, even if the host designates these portions for their guests to take home,
they are actually still in the host’s house and need to be carried. And doesn’t their physical location
matter? The Gemara asks and answers this same question:

It is considered as a case of one who designated a corner for him.

The Gemara concludes that the host actually designates not just the food but even the part of the
house where the leftovers are kept as belonging to the guests, so they can in fact take possession
on the holiday, and carry the leftovers away.

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What will you carry away from this tractate? Jews traditionally end every tractate by ritually
declaring “Hadran alach Massekhet [insert name of tractate]” – we will return to you, Tractate
X. We hope to return to each tractate because there is still much for us to learn from them.

Though I know we have all taken much wisdom from this tractate, the sages remind us that there
is still plenty left over (pun intended) for us to take. And if our daf is a sign, that wisdom was
already designated as ours before we even showed up to learn. Hadran alach Massechet Beitzah!

Rabbi Johnny Solomon writes:7

When considering what should be my thought for our daf (Beitzah 40b) – the final in the
Massechet – I was drawn to an observation found within the final lines of the Massechet.

We are taught in a Beraita (see Beitzah 40a) that Rebbi is of the opinion that range animals are
mukzeh on Shabbat and Yom Tov. Yet we are also taught that Rebbi presented the halachic view
of Rabbi Shimon – who has a much narrower application of the mukzeh laws and only applies
them to dried figs and raisins (see Shabbat 45b). This then leads the Gemara to wonder why Rebbi
presented Rabbi Shimon’s view?

Among the three answers offered by the Gemara, the one that I would like to explore is ‫לדבריו דרבי‬
‫ – שמעון קאמר וליה לא סבירא ליה‬meaning that Rebbi merely sought to explain Rabbi Shimon’s view
but does not, himself, subscribe to it.

Personally, I love this explanation as well as its broader message – reflected both here on this daf
and on so many others - of making the effort and taking the time to consider and explain the ideas
of others even if we don’t agree with them. In fact, this very trait is famously cited to explain why
Beit Hillel’s opinion is followed over that of Beit Shammai – because, as we are taught in Eruvin
13b, ‘Beit Hillel would study their own opinion and the opinion of Beit Shammai, and not only
that, but they would mention the words of Beit Shammai before their own’. In fact, I actually
believe that it is this very attitude which drives so many men and women around the world to study
daf yomi.

Every day we open a page of Gemara and encounter a range of laws, ideas, interpretation and
perspectives. Sometimes they resonate, and there are times when they don’t. But rather than
dismissing or ignoring these ideas which may be hard to connect with, we invest time and effort
to consider, understand and explain them.

Based on this, what is a siyyum and what do we celebrate at the end of the study of a Massechet?
It is not merely the celebration of the completion of the study of ideas to which one subscribes.
Instead, it is the celebration of the completion of the study of ideas including those to which one

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may not subscribe, and the powerful message conveyed by the daily ritual of having made time
every day to hear, consider and understand those ideas.

In a world where so many people live in ideological echo chambers, the act of spending time each
day looking at the world from a different perspective other than our own is, I believe, a truly
profound endeavour, and those who do so convey a deep message – that when we consider
outlooks different to our own, we are not diminished but are, instead, enriched; we are not
weakened but are, instead, strengthened; our mind is not narrowed but is, instead, broadened.

And it is this which we celebrate today upon the completion of our study of Massechet Beitzah.

Rav Moshe Taragin writes:8

The convention of shlichut (halakhic agency) is a familiar and widespread concept in Halakha.

Many halakhic activities such as kinyan, kiddushin, gittin, and hekdesh can be performed

indirectly through an agent (shaliach). Yet, the gemara in the first perek of Bava Metzia addresses

the situation of "chav le-achrini" in which halakhic shlichus fails. Reuven cannot ask Shimon to

collect a loan from a third party assuming this third party debtor has other outstanding debts. In

such an instance, Shimon's shlichus or his collection on Reuven's behalf damages other peoples'

interests. By appropriating a tract of land for Reuven, Shimon has precluded other potential

creditors from collecting that land. In cases of chav le-achrini where the particular act of the

shaliach damages others, the shlichus fails. The gemara in Bava Metzia (10a) raises another

possible example of this failed shlichus known as "magbi'a metzia le-chavero." Reuven cannot

appoint Shimon to acquire ownerless items on his behalf since this agency also damages other

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people who could have potentially acquired these very same items. This, too, represents a form of

chav le-achrini in which classic shlichus is inoperative. This week's shiur will explore the nature

of this type of failed shlichus.

What makes this halakha so startling is the fact that the gemara provides no rationale for

this deterioration of shlichus. Shelichut is a tried and tested concept and it usually exhibits a high

degree of flexibility and broad application. For the gemara to invalidate shlichus in cases of chav

le-achrona without even providing a basis is somewhat surprising. To better appreciate this

unexpected and strange omission we must only look to an analogous instance of failed shlichus –

appointing an agent to perform an aveira (ein shaliach li-devar aveira). There, the gemara provides

a clear reason for the failure of the shlichus to work (see Bava Metzia 10b). Yet, in our instance,

no such explanation is provided.

This perspective can assist us in understanding the position of Rashi who severely limits

this principle of shlichus failing when the agency damages others. According to Rashi, classical

shlichus DOES indeed operate even when harmful to others. Only one unique form of agency is

disqualified in our scenario. This is known as "zakhin le-adam she-lo be-fanav." In general,

Shimon can act as Reuven's agent in cases of absolute benefit for Reuven, EVEN if he were not

explicitly appointed as such. This capacity (generally referred to as 'zakhin') grants agents broad

license to act on behalf of others without their knowledge, assuming the situation is completely

beneficial to the other person. For example, Shimon may not divorce Reuven's wife or purchase

an item for him without being directly appointed for these tasks. In either case Reuven might not

have desired the consequences. However, Shimon can accept a gift from a third party on Reuven's

behalf since this is a singular "zekhut" (privilege, without any possibly undesirable consequences)

for Reuven; Reuven can be represented even without his prior consent.

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 According to Rashi, it was only this special form of 'tacit representation' or zakhin which

was disqualified in instances harmful to others. Standard shlichus would be operative in ALL cases

including those with negative connotations toward others. Rashi's position seems to contradict

several gemarot many of which do not distinguish between standard shlichus and tacit zakhin and

some of which actually disqualify even standard appointed shlichus. Reconciling Rashi's position

with these seemingly contradictory gemarot lies beyond the context of this shiur. However, it is

important to note that though his position is strained textually it seems very logical. Quite possibly,

Rashi adopted the above stated logic that standard shlichus should in no way be hindered by chav

le-achrini. Hence, he limited the disqualification to very unique forms of representation but

allowed classic shlichus to continue operating even in scenarios of 'chav le-achrini.'

Though Rashi's desire to limit the chav le-achrini problem to 'zakhin' cases and not to all

shlichus cases seems logical, we still might question the basis for this distinction. Indeed,

according to Rashi, it makes little sense to disqualify all shlichus and he, therefore, limits the

disqualification to zakhin. Yet, we might still question why even zakhin is discriminated against.

If zakhin represents a halakhically viable form of tacit representation why should it fail where that

representation will damage others?

The Ketzot Ha-choshen addresses this issue in siman 105:

He explores the manner by which someone can automatically become another's representative

without the latter's explicit appointment. He offers two options: 1) We might translate assumed

approval into halakhic appointment. Namely, we must assume that Reuven would desire Shimon's

representation in situations of absolute advantage. In Halakha, assumed approval is referred to as

18
'umdana' (literally - we assess the mindset of a person). Even though no formal appointment was

enacted, an umdana to such exists and we consider it as if Shimon had been appointed. Had Reuven

known about the opportunity he surely would have appointed Shimon; it is as if Shimon were

ACTUALLY appointed. 2) The Ketzot suggests another option and indeed a very different source

for Shimon's appointment in cases of zakhin. In the absence of outright appointment by the

beneficiary, the Torah ITSELF appoints an agent to act on someone's behalf. If Levi wants to

transfer a gift to Reuven who is not present the Torah authorizes Shimon as Reuven's agent to

accept the gift from Levi. The Torah expects people to act on behalf of others and appoints people

to those missions.

Ultimately, the Ketzot posits that Rashi's distinction between shlichus and zakhin might

revolve around this factor. Indeed, there seems little reason that peripheral harm to others should

subvert shlichus OR zakhin for that matter – assuming that zakhin is similar to shlichus. In the

case of shlichus, the beneficiary appoints the shaliach officially while in the case of zakhin he

appoints by assumption. The distinctions between them seem slim at best and certainly zakhin

should not be discriminated against in cases of chav le-achrini. Possibly, Rashi maintains that

zakhin's appointment stems from Torah law - to act for another's benefit. This legislated

representation might only obtain if all parties benefit (no one is damaged by Reuven's gain – for

example, where Levi stipulates that he only intends the gift to Reuven). If others will lose through

Reuven's gain (for example, an ownerless item which anyone can claim or collection of land in

lieu of a debt in a case where other creditors exist) the Torah makes no legal appointment for

Reuven's benefit. As opposed to an individual, the Torah considers the broader picture and cannot

favor one person at another's cost.

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SUMMARY:

We have outlined the basic halakha of chav le-achrini and noted its potency in disqualifying

the seemingly omnipresent rule of shlichus. We studied Rashi's position which limits the

disqualification to zakhin (tacit representation) and suggested that he sympathized with our

concern. The Ketzot suggested an explanation of Rashi's distinction between zakhin and classic

shlichus.

Most Rishonim do not distinguish between zakhin and shlichus and claim that chav le-

achrona disqualifies each – Reuven cannot even explicitly appoint someone to represent him if

other parties will be damaged. Interestingly enough, both the Ashkenazi commentators – Tosafot

– as well as the Sephardi ones - Ramban and his students- disagree with Rashi. Hence, we return

to our point of departure - how to explain the invalidation of halakhic representation (zakhin as

well as shlichus) in cases which damage other parties.

Oddly enough, this fundamental question is not directly addressed by the Rishonim. Very

few, if any, of the Rishonim actually articulate an explanation of this problem. Nonetheless, we

might suggest two basic approaches toward understanding this principle. We might locate the

failure of shlichus in one of two areas. We might claim that Reuven cannot appoint a shaliach in

cases of chav le-achrini since he does not have sufficient authority to appoint. Some commentators

direct our attention to the Ran (Bava Metzia 11b) who develops the term ba'al ha-mammon -

(literally the owner of the money). In general, I might appoint an agent to marry a woman and give

him money to perform this task. As the exclusive owner of the money and the intended husband I

am completely authorized to make this appointment. However, I do not have authority to appoint

20
a shaliach to grab an ownerless item since I am not the owner of that item. The failure of shlichus

in cases of chav le-achrini lies in the lack of authority of the beneficiary to make the appointment.

An alternate suggestion might place the failure of chav le-achrini not in the appointment

process but in the execution of the shlichus. Representation in halakha can only be implemented

if no other parties lose. If others are damaged by the agency the representative act misfires. Indeed,

the appointment was successful, but the agent cannot effect any action since the entire concept of

halakhic representation only applies where only one party is impacted by the situation.

This second view - that the beneficiary can appoint but ultimately shlichus inherently fails

where others are impacted - might evolve from an interesting exception to our rule stated by the

gemara in Bava Metzia (10a). The gemara suggests that a day-laborer may acquire ownerless items

on behalf of his employer. Rabenu Chananel suggests a similar exception in the case of the

executor of a state who protects the interests of orphans who are still minors. He may also collect

their debts or acquire ownerless items on their behalf. Had the problem with chav le-achrini resided

in the appointment process, we might question why these cases are exceptions; they, too,

seemingly have to be appointed according to the constructs of shlichus and cannot exist when

others are damaged. However, if we view standard representation as inherently irrelevant in cases

of chav le-achrini we might better understand these exceptions. The cases of a hired worker or an

executor might reflect cases in which standard representation (shlichut) is superseded and the

individual can be viewed as my 'direct agent' rather than merely a proxy. Once we view these

individuals as super-agents who more directly represent their clients we might justify their

effectiveness even in cases of chav le-achrini. Standard levels of representation default in cases of

chav le-achrini but possibly higher and more direct forms are sustained.

SUMMARY:

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 Upon examining the dominant position of most Rishonim to invalidate all forms of

representation, we might present two options. Either the appointment process fails or the actual

representation cannot succeed in these cases. One difference between these two approaches might

be the case of a laborer or the executor of an estate.

In conclusion, we might inspect a secondary issue pertaining to the definition of CHAV

LE-ACHRINI which might be influenced by the essential definition of this principle. To what

extent does the disqualification of chav le-achrini apply if others are not directly harmed but are

prevented from profiting. Must they actually be injured or merely precluded from generating

profit? The Ramban in Bava Metzia (10a) notes the position of Rav Yochanan that a shaliach

cannot collect debts for Reuven but CAN acquire ownerless items. In general, these two scenarios

are equated by the gemara and taken as textbook examples of chav le-achrini. Yet, Rav Yochanan

seems to distinguish between them. The Ramban explains that indeed Rav Yochanan only

classified direct loss as chav le-achrini but did not define prevention of profit as such. Hence, a

shaliach may acquire ownerless items since he is only preventing potential profit and not outright

harming. The gemara's dominant opinion, however, disagrees with Rav Yochanan and views

acquiring ownerless items as a form of chav le-achrini.

A similar distinction is drawn by Rabenu Tam surrounding a gemara in Beitza (39b) which

allows an agent to draw water on another's behalf – even though he is preventing others from

drawing water at that moment. Rabenu Tam concludes that drawing water cannot be considered

chav le-achrini since there is sufficient water for everyone and others will wait in line for their turn

to draw water. In the case of ownerless items or creditors vying for one tract of land Reuven's gain

directly impacts a loss upon others. Other commentators disagree with Rabenu Tam's distinction

claiming that, in theory, drawing water would also be classified as chav le-achrini.

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These two situations provide an interesting study in the definition of chav le-achrini. To what

degree is this question a product of the previous one? We questioned whether the appointment

fails or only the actual execution fails. Which perspective of chav le-achrini would demand a real

loss for the rule to apply and which perspective would allow even prevention of profit to scuttle

the shlichut? This question will be left to reader to ponder. October 7, 22

As we leave our beloved Masechta let us look at the most erudite talmid of Prof Shaul

Lieberman, Prof Dovid Weiss Halivni who revolutionized the way we look at Talmudic texts

seeing the geological strata underneath the surface .

1 / / ‫ת ש פ״ ב‬ ‫א׳ ְבֶּחְשָׁון‬

Rabbi Alan J Yuter and Rabbi David Weiss Halivni write:9

9
https://utj.org/viewpoints/

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On Monday, November 20, 2017, Rabbi David Weiss Halivni’s students who attend his Talmud
shi’ur at the Hebrew University’s Givat Ram campus, made a birthday party honoring our teacher,
Rabbenu, on the occasion of his 90th birthday.

Because I have known Rabbenu since the Fall of 1968 when I entered the Rabbinical School of
the Jewish Theological Seminary [=JTS] a little less than half a century ago, I was asked by the
shi’ur’s attendees, amongst them published professors, accomplished doctorates, and ordained
rabbis, to present a devar Torah honoring Rabbenu for his teaching us and celebrating his rich
lifetime of Torah scholarship, teaching, and accomplishment. Below is an English summary of my
remarks on that occasion.

My very first encounter with Rabbenu was at the bar mitzva of his son, Baruch. At that bar mitzva,
Baruch spoke about the debate regarding the wearing of phylacteries on the intermediate festival
days. I did not understand even a sentence of the young man’s talk. Here I was a JTS Rabbinical
student and nevertheless unable to follow the halakhic discourse of R. Halivni’s thirteen year old
son. Who was this man, whose son is so learned, whose reputation for greatness so dazzling, and
whose voluminous Talmudic research has set the agenda of Academic Talmudic scholarship to
this day?

Born in 1927, Rabbenu was raised by his maternal grandfather, Rav Yeshayahu Weiss, a poor man
who was nonetheless an accomplished Torah scholar in Sighet, Hungary. In his grandfather’s
house, the young prodigy who grew into Rabbenu was conditioned to learn peshat, the plain,
simple, literal meaning of the Talmud’s holy words. In this Hungarian, Hassidic milieu, Rabbenu
learned how to learn Torah with integrity but without casuistry, agendas, or fanaticism. If Torah
is the word of the Lord, its holy words must be understood clearly and correctly in order that they
be applied appropriately and accurately. After all, the Rabbi/teacher is an explainer, not an oracle.

The only member of his family to survive the Holocaust, Rabbenu recalls only part of the
Holocaust horrors. One of his touching Holocaust stories was the reverence with which Jewish
concentration camp inmates gave to a torn page of Orah Hayyim. Literally, the title means “the

24
way of life,” the first major section of the Shulhan Aruch which deals with the religious rules for
the Jewish day, the second, with the Sabbath, and concludes with the yearly cycle of holy days.
The study occupation with “the way of life” in the Death Camp presents Torah as a counter-culture
life-affirming response to history’s most professional murderers. The Torah’s societal ideal is the
polar opposite of an oppressive society and Torah study becomes the religious expression of sacred
subversion to evil.

Rabbenu’s reputation and publications have dealt mostly with Talmud exegesis, but practical law
and proper, normative behavior was always a religious concern, and it is this private side of
Rabbenu that I was privileged to encounter. Briskers learn Torah for the sake of Torah; the
modernized Hungarian Hassid that Rabbenu happens to be learns Torah in order to observe the
Torah’s commandments correctly. After all, an ignorant person cannot be a Hassid [mAvot 2:5]

Some emerged from the Holocaust Hell without faith at all, others with faith tried, tested, but
intact, yet others with faith tinged and singed with anger. Rabbenu cannot live without God, but a
thinking, feeling, human response is inevitable. In the metaphor and mood of Rabbenu’s Hassidic
Tradition, the Jew is commissioned fix this imperfect world by making tiqqun, the proactive,
corrective action that changes the world that God created. As Rabbenu would later write for a
mature, academic audience, our received Torah text has been blemished, i.e. is “maculate,” and
Rabbenu’s academic, “scientific” research is the contemporary expression, and instrument, of
tiqqun, the cleansing of God’s originally perfect Torah of historical maculation, the perfecting of
Torah and the recovery of God’s “seal,” which is truth. And this truth, God’s seal, may not be
broken by secular indifference, egalitarian excess, misplaced, uninformed “religious” zeal, or even
by Nazi murdering monsters.

After World War II, Rabbenu came to America. He found his residence’s Orthodox Kosher
supervisor to be less than competent in his Judaic erudition, at least according to the rigorous
benchmarks of his Hungarian, Hassidic Orthodoxy. After all, Rabbenu was ordained as rabbi at
the age of fifteen! A wise and competent social worker introduced the greatest academic

25
Talmudist, and for full disclosure we should add, confirmed Litvak [non-Hassidic Orthodox Jew],
in 20th Century America, Rav Shaul Lieberman, to Rabbenu , who was subsequently to become
the major teacher, the Rav Muvhaq, of Rabbenu. After convincing Rabbenu that the institutional
food was indeed kosher, Rav Lieberman kept an eye on this firebrand plucked from the
crematoria’s fire, whose black fire and white fire were destined to fill volumes of Talmud
commentary, and he continued to nurture Rabbenu into the Academic Torah scholar that he was
destined to become.

A superb student at Yeshiva Chaim Berlin, Rabbenu was exempt from the Rosh Yeshiva’s, R.
Isaac Hutner’s, lectures. For Rabbenu, greatness in Torah required the acquisition of worldly
wisdom. Unwilling to be limited in his search for Truth by the Yeshiva World’s
educational/ideological narrative, curriculum or culture, Rabbenu sought to master the Western
mind as well, and made up his mind to learn Philosophy at college. The Satmar Rov and the
founder of the Lakewood Yeshiva, Rav Ahron Kotler, were “drafted” to talk Rabbenu out of his
spiritually independent course of Torah study, according to which thinking freely should not be
confused with free thinking, but is the condition for the discovery of truth. I imagine Rav Kotler
admonishing Rabbenu, pressing “only Torah counts, what can you learn from sinful Epicureans,
do you really need goyesheh narishkeit [Gentile foolishness] in order to be a ben Toyreh?” And I
can imagine Rabbenu listening respectfully, politely, and deferentially to the strong-willed Rav
Kotler, and then retorting, “nowhere in the Oral Torah is the study of Gentile wisdom forbidden,
Ashkenazi practice is usually based on the rulings of Rav Moshe Isserles, i.e. the Rem”a, and he
quotes Aristotle in his Responsa and Maimonides’ Guide in his introduction to his Shulhan Aruch
glosses. I don’t think God gave a different Torah to him than He gave to me.”

The essential difference between Rav Kotler’s Torah study and Rabbenu’s is that “Yeshiva”
learning aims to recover the Tradition as proclaimed by the Rosh Yeshiva as he reads his world
view narrative into in the canonical library. The ideal student would not think of confronting the
Torah canon other than through the prism of Orthodox folk culture as it is mediated by the world
view and religious narrative of the Great Rabbi/Rosh ha-Yeshiva. The student never grows up into

26
a Jewish adult. The student must always defer to the teacher, who processes and defines what the
Torah prescribes. [See however R. Hayyim Berlin, Ru’ah Hayyim 1:3, where the good student is
obliged to challenge the teacher. Sometimes the student is right].

In stark contrast to Yeshiva learning, which reads the Great Rabbi’s narrative assumptions into the
canonical library, Rabbenu struggles to discover God’s word, i.e. the Divine narrative encoded in
that library. He strives to decode, describe, and define the Tradition and narrative memorialized in
that canon. He invites his students to join him in this at once religious and academic enterprise. In
the Yeshiva world that Rabbenu left, “truth” is located in the divinely inspired, and unquestionable
intuition of the Great Rabbi’s charisma, office, and narrative. By choosing to learn under R.
Lieberman, who studied the Torah canon ki-feshuta, the simple, straight, common sense
philological meaning of the canon’s words, Rabbenu’s academic method serves a profound
religious objective, to encounter God in the Torah library’s text.

Here a word regarding Rabbenu’s learning is in order. Rabbenu divides the Babylonian Talmud
into Tannaitic, Amoraic, and post-Talmudic strata, or literary levels. The Tannaitic and Amoraic
strata tend to identify rabbinic authorities by name, their traditions are transmitted in Hebrew, and
they usually present their views apodictically, that is with limited interpretation, dialectic, or
commentary. Since the post-Amoraic sages transmitted their comments anonymously, Rabbenu
calls them Stamma’im, the “anonymous” ones. These sages did not issue apodictic rulings, as that
authority lapsed with the court of Ravina I and Rav Ashi [bBava Mezi’a 86a]. But these
Stamma’im glossed Amoraic materials, recovering and perhaps innovating interpretations of those
Amoraic texts, they composed or redacted Talmudic compositions and are responsible for
transferring Talmudic materials that appear in multiple versions. The “Yeshiva” approach to
Talmudic learning assumes as dogma that the Talmud is a unified text, actually composed by
Ravina and Rav Ashi, the Rishonim, and the early authorities, are themselves masoretically
canonical, and lernen, authentic learning, requires the student to find the Rosh Yeshiva’s narrative
and ideology in the harmonized, canonical texts. Rabbenu’s method has been accepted by just
about all Academic Talmudists and clandestinely by some in the Yeshiva world. The

27
epistemological difference between the Yeshiva world’s lernen and Academic Talmudic learning
is reflected in their respective views of “Tradition.” Academic Talmudists confront the Rabbinic
corpus as a human artifact that may be read and parsed, with data being culled, patterns noted, and
conclusions, i.e. a reading, formulated. On the other hand, the Yeshiva worlds’ lernen makes
ideological assumptions that render the Oral Torah corpus unreadable. The authority to render a
reading is reserved by the Rosh Yeshiva, i.e. the community elite. By subjecting the Oral Torah to
literary explication and readability, Academic Talmudists remove the mystery from the Talmud,
which for the Yeshiva world undermines the Talmud’s sanctity, and the Rosh Yeshiva’s apodictic
authority to intuit, initiate, and invent new rulings free and immune from review or assessment.
According to the Oral Tradition, after Rav Ashi, no individual rabbi is authorized to issue apodictic
decrees that bind all Israel, a view codified by Maimonides. In contrast, the Yeshiva world
regularly, and consistently, reminds its charges that “we do not decide the Law on the basis of the
Talmud” or for that matter, Maimonides’s compendium. The Law is revealed in the charismatic
and non-reviewable narrative of the elite Yeshiva rabbis. Rabbenu’s Midrash, Mishnah, and
Gemara, his English exposition of his life’s project, is subtitled “The Jewish Predilection for
Justified Law.” In normative terms, nobody and no body after Rav Ashi is authorized to say, “do
or believe this or that because I/we say so.”

It was reported that when asked about Rabbenu’s whereabouts on the evening of December 24th,
a.k.a. Christmas Eve, Rabbenu was in his office, doing what he always does, learning Torah.
Somewhat annoyed, the questioner asked, “this is Nittal nacht, the birthday of Jesus, how can he
sit and learn Torah?” Learning Torah on what for Christianity is a “Holy Night” became a parochial
taboo for Eastern European Orthodox Jewish culture. Rabbenu retorted, “I am called an apikores.
I ought to do something to deserve the title.” According to Jewish law, we do not learn Torah on
the 9th of Av and the week of mourning. Whether this Nittal nonsense policy may have made sense
in Eastern Europe is beyond the scope of this paper or competence of this reviewer to assess; I
found neither Source nor Tradition in the Oral Torah canon that justifies suspending Torah learning
on December 24th, especially if the learning does not endanger the learner’s physical safety.

28
Rabbenu believed in in doing kindness as well as Torah truth; this tandem gave him his anchor
when confronted with physical and spiritual threats and challenges. When Rabbenu realized that
JTS’s changed religious orientation had become for him untenable, Rabbenu had the courage to
walk away from his chaired professorship, institutional honor, and deference that would still be
his if he would only bend to the will, whim, and ideology of the new administration. Under Rabbis
Finkelstein and Lieberman, JTS defined Judaism by referencing Judaism’s sacred canon; now
“Judaism” at JTS is no more and no less than the taste culture lived by the Conservative
synagogues’ non-observant, uninformed, aging, and declining lay membership, those Jews in the
pews who pay the dues—and the rabbinic professionals’ salaries.

Rabbenu earned his BA in Philosophy at Brooklyn College and an MA, also in Philosophy, at
NYU. Philosophy served as Rabbenu’s window into the Western world’s moral mind and
collective consciousness. Rabbenu was particularly drawn to the study of logic and legal theory,
which provided him with tools with which to parse his beloved Talmud and Jewish law.

According to Mishnas Rabbi Ahron, which is based upon the Lakewood Yeshiva’s students’
transcripts of R. Ahron Kotler’s lectures, the Great Man, the Godol, reads his hashqofeh/world
view/ideology/narrative into the textual Torah canon, which while sacred, remains unreadable
except by the Godol, whose divine inspiration is made possible by his professed piety and
intellectual innocence, i.e. his mind has not been contaminated by secular thoughts or non-sacred
learning. In stark contrast to R. Kotler’s world view, Rabbenu wants to know what the Torah canon
actually says, means, and requires of Jewry based upon its layering, unfolding, and evolution over
time. Rabbenu identifies, compares, and distinguishes between the Oral Torah’s sacred sources
and the subsequent traditions that were based upon those sources.

Rabbenu almost failed to be accepted into JTS’s Rabbinical Program. He was shy, spoke English
with an accent, and appeared at first glance to be insufficiently charismatic to lead an American
Conservative congregation. When it became clear that Rabbenu was to be groomed by R.
Lieberman for an academic career, he was admitted into the Rabbinical School program.

29
Ironically, after his break with JTS, Rabbenu became the spiritual leader of Congregation Orah
Eliezer [Louis] Finklestein, the last Halakhically committed Chancellor of JTS. Rabbenu was also
acclaimed the spiritual leader of the Union for Traditional Judaism, the American UTJ.

Rabbenu left the JTS over the procedure by which women were determined to be eligible for
acceptance to JTS’s Rabbinical School. Non-experts with no expertise in, and for some without
commitment to, Jewish law, were to be eligible—and competent—to vote to ordain women rabbis.
And JTS’s non-tenured faculty knew very well how Chancellor Gerson D. Cohen expected them
to vote. Breaking with the JTS tradition of academic freedom and meritocracy, with R.
Lieberman’s passing, Rabbenu, the most renowned Rabbinics scholar at JTS at the time was not
appointed to the post of Rabbi of the JTS Synagogue. Instead, Chancellor Cohen appointed an
elderly egalitarian rabbi who knew what his Chancellor expected of him and was apparently
prepared to comply. Ironically, under R. Lieberman, intellectual diversity at JTS was valued and
respected. In order to accommodate the new egalitarian dogma, classical Jewish law at JTS was to
undergo reconstructive reformation, a path Rabbenu was unwilling to walk.

After resigning from the JTS faculty, Rabbenu subsequently taught at Columbia, Bar Ilan and
Hebrew Universities. He was also awarded the Israel Prize for Talmud. One of his Israeli students
informed me that unlike most Israeli professors, Rabbenu would graciously and generously give
of his time and erudition to help any and every student and scholar who sought his guidance,
breadth of learning, and methodological acuity and sophistication.

When a rabbinical student at JTS, I was impressed that Rabbenu’s office was both a library and a
Bet Midrash. The office was immaculately clean, precisely ordered, and invitingly and warmly
intimate. The shelves were lined with both sacred and secular books; Rabbenu’s bookshelves
proclaimed by the example of their range of subjects that modern Orthodox Jews must apply
secular, academic tools in order to decode the secrets of the sacred. In response to the demonic
chaos that was the Holocaust, Rabbenu found a sacred ordering and meaning in Torah, now to be
deconstructed with modern, critical tools. It was in his Bet Midrash office at the Conservative JTS

30
that Rabbenu emerged as a compelling modern Orthodox rabbinic model. Rabbenu’s “Orthodoxy”
is expressed in, as well as by, his total commitment to the object of his study, the Judaism of the
Written and Oral Torah, the study of which is a sacred act. By accepting “Modernity” as the culture
horizon which he happens to inhabit, Rabbenu realizes that God’s Torah must resonate to current
realities, without valorizing what is nostalgically remembered to be the “good old days” of
“traditional” life or by succumbing to Modernity’s seductive secularity. Critical thinking does not
undermine the sanctity of Torah; for Rabbenu, critical thinking anchors the student in the search
for truth, “letting the law pierce the mountain” [bSan 6b], the chips falling where they may.

“Criticism” is the art of making of a judgment. Because Rabbenu focuses on understanding what
the canon actually says rather than accepting ideological narratives and intuitive
conceptualizations that are read into the Torah’s words, Rabbenu chose as his adult rebbe R.
Lieberman, who studied the Oral Torah ke-feshuta, according to its plain sense meaning. By
studying the Oral Torah in its Greek and Roman culture context, R. Lieberman broke with those
within Orthodoxy who forbade secular studies and who outlawed any but their own ideologies,
world views, or narratives, like R. Kotler and the Haredi Yeshiva world.

For Rabbenu, one cannot understand Torah properly and adequately if one lacks the requisite tools
to decode, interpret, and read the Torah canon with precision. For some within Orthodoxy, it is
sufficient to follow “Tradition,” which is construed to be the way that our ancestors believed,
learned, and practiced Judaism, as defined and moderated by the Yeshiva world’s elite rabbis. For
Rabbenu, we have to be honest to God when we learn God’s Torah. Chabad and Satmar agree that
the Holocaust happened because of Jewish assimilation, secularization, and Zionism. For Rabbenu,
this suggestion is not merely incorrect, it is theologically blasphemous. How dare we read God’s
mind so presumptuously! Job’s “friends” maintained that since Job was suffering, he must have
sinned because a good God would not allow the righteous to suffer. God angrily chides Job’s
friends, saying “you did not speak about me properly, as did my servant, Job” [Job 42:7]. Job knew
that the suffering he had undergone was not commensurate with the pain he was obliged to endure.
A mature, adult modern Orthodox possesses the integrity to ask hard questions and not to be

31
content with the easy, conventional, pre-packaged trite, so-called “traditional” answers. What is
amazing about Rabbenu is that his academic/spiritual quest is undertaken with a profound
humility. Rabbenu taught that we cannot obey God with open eyes if we are ordered to follow
people’s opinions with eyes closed. After all, if a dreamer of dreams or prophetic pretender
commands that Torah be violated, we need Rabbenu’s eyes and energy to read carefully and to
resist courageously. [see Deut. 13:1-6].

When contemplating aliya in 2002, Rabbi Shlomo Riskin advised me to acquire a Yadin Yadin
ordination. Because I was at the time on the faculty of the Union for Traditional Judaism’s Institute
of Traditional Judaism [the American UTJ rabbinical program, the Metivta], and Rabbenu was
Reish Metivta, and hence my boss, it was natural that I turn to Rabbenu for direction. For the
following nine years, Rabbenu directed my Torah learning, not as a detached, “objective”
academic scholar but as an old- fashioned Hungarian Rov whose community happens to be located
in the modern world. My first exam covered the Laws of Judges and Testimony. The exam took
place after a UTJ meeting in Teaneck, N.J. while I am driving Rabbenu and three colleagues to
New York City. His questions were always focused on the plain sense of the Shulhan Aruch text,
the sources upon the Shulhan Aruch’s ruling was based, and how I might apply those Traditions
in real life reality. Rabbenu never asked trick questions. He did, however, require total control of
the information on the page and a familiarity with the range of opinion regarding the rulings on
the page. After ascertaining that the requisite material had been mastered adequately, Rabbenu
asked, “what is the issue underlying the laws of Jewish testimony.” I recall answering, with the
anxiety of uncertainty, “we are defining ‘who is a good Jew,’ and the rush to condemn and declare
dissenters to be heretics, is, according to Jewish Law, slander.” Upon reaching Manhattan,
Rabbenu disembarked and the exam happily ended.

Rabbenu was guiding and nudging me to consider Jewish Law’s ethos, teleology, and social vision,
which brought me to consider the society that the Torah Law prescribes. For Rabbenu, the poseq,
the rabbi who decides questions of Jewish Law, may not oracularly intuit the “right” answer and
then reconstruct a narrative by means of a selective citation of canonical sources. This Modern

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Orthodox scholar is a conservative but not an activist jurist. Not once did he remind me that Rabina
I and Rav Ashi were the last rabbis who were authorized to issue apodictic decrees that bind all
Israel [bBava Metsi’a 86a]. The post-Talmudic rabbi may interpret but does not proclaim the law.
Rabbenu stresses that throughout the history of Halakhah, we find a “predilection for a justified
law.” Rabbenu maintains that the poseq must suspend his personal preferences and instead recover
the norm as it is embedded in the canon’s library. Accordingly, anything not forbidden by a legal
norm is permitted in practice. Orthodox Jewish law actually prescribes precision, avoiding the
extremes of gratuitous restriction on the Right as well as libertine abandon on the Left.

Unsatisfied with my Orthodox ordinations from R. Mordecai Eliyahu and R. Moses D. Tendler,
Rabbenu required that I be re-examined on Issur ve-Heter, the Laws of Kashrut that the standard
ordination examination had covered. Rav Eliyahu wanted me to master the information of Issur
ve-Heter, Rav Tendler gave me a tutorial in his own Tradition; by preparing the Yoreh Deah
materials with the Iggrot R. Moshe Feinstein, R. Tendler introduced me to the craft of deciding
cases of Jewish law. Although most Yeshivot do not teach their students how to think, contenting
themselves to instructing their students what they ought to think, R. Tendler’s scientific method
induction prepared me well for Rabbenu. After being examined on issur ve-heter, Rabbenu
assigned me to learn the laws of Passover Kashrut, saying “I am testing your ability to apply and
transfer what you know to related areas.” Rabbenu always assigned me materials to study with
leading questions that provided the conceptual key to understanding the laws. When preparing for
the examination on kosher mixtures, or ta’arovot, Rabbenu warned me, “I will be grilling you on
the Schach’s issues with the double doubt leniency [sefeq sefeqa]. Be prepared!” What changed
between R. Tendler’s tests in 1987 and Rabbenu’s gauntlet in 2010, was that I had discovered R.
Ovadia Yosef’s responsa, which on most matters did my homework for me by outlining the various
opinions and rulings.

Rabbenu told me that he passed his semicha exams at age fifteen. Recalling that I did not
understand his son’s Bar Mitzva discourse in 1968, this biographic factoid did not put me at ease.
Again I had to make defensible and justifiable rulings. When Rabbenu said this to me, I could hear

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Rav Tendler speaking firmly into my inner ear, “You are learning to be a rov, not a floppy disc; it
is not good enough to remember. You have to think.” After one exam, Rabbenu asked me, “Did
you ever study the philosophy of law?” I said, “Yes.” And he then pressed, and “So who is your
favorite legal theorist?” I answered, Hans Kelsen’s Pure Theory of Law.” Like Rambam, Kelsen
argues that Law is an objective hierarchy of norms. Barring emergencies, customs do not and may
not override Law. Legal Formalism provides the jurist with repeatable, testable, and reviewable
methodological tools. It also provides for the possibility of assessment. Rabbenu then confided to
me that he wanted to study the philosophy of law to be a better poseq and logic in order to better
learn Talmud.

Two of Rabbenu’s exams were witnessed by “outsiders.” In the middle of one exam, taking place
on the patio of the Israel’s National Library, Prof. Menachem Freidman came over to our table, sat
down, and his ensuing conversation with Rabbenu provided me with a welcome relief from the
tension of the test. However, during another test in one of the National Library’s side rooms, Prof.
Haym Soloveitchik sat, without emotion, witnessing my fielding the questions. Whether he was
amused, pleased, or curious, I cannot tell. But his piercing stare did not provide me with relief,
insight, or comfort.

One exam was devoted to Even ha-‘Ezer 17, the rules of the Aguna, the woman “chained” or
anchored in a dead marriage who is unable to obtain a get, the document which when delivered to
the woman ends the marriage in a Jewish divorce. As a young rabbi, Rabbenu learned these laws
to in order to address the challenge of Holocaust widows whose husbands were not to be found.
He asked me to find an “opening” to help the situation in this chapter. At Even ha-‘Ezer 17:58,
Rem”a writes that if a woman remarries with the permission of the court, which accepted the
evidence that her husband had died, and the husband reappears alive and well, since the wife did
nothing improper, the Oral Torah rule that she must separate both from her husband and current
companion would no longer be applicable. While Rabbenu was no reformer, he insisted that any
and every instrument in the Halakhic toolbox must be mustered in order to free these chained
women. And he reminded me to study each case on its legal, formal merits.

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Rabbenu reminded me that when the Reform introduced changes in usage that did not violate
Halakhah, they should not have been dismissed out of hand. Yiddish language sermons are not
required by Talmudic law. For Rabbenu, “orthodoxy” implies commitment to religious law, not
conformity to an institutional franchise. Not every innovation of the Reform need be rejected.

Learning Torah as a human language artifact which reveals the Divine will requires tools that
empower the learner to know how, and being willing to, read, think, and reach rational conclusions.
Rabbenu’s learning, conscience, scholarship, and courage made him into a man for whom the
blessing “Praised are You, our God who is king of the world, Who has bestowed of His wisdom
upon those who revere Him,” is singularly appropriate.

HADRAN

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