Gittin

Gittin 53a: The Devalued Mizrach Vant Seats

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Gittin 53a: If someone damages property in an invisible manner (e.g. he makes someone else’s food tamei), if he does so accidentally he is exempt; but if it is intentional, he is liable. Chizkiyah said that, according to strict Torah law, he would be liable in both cases… Rabbi Yochanan said that according to Torah law, both are exempt, but the Sages made the intentional perpetrator liable so that people should not go around with impunity making other people’s food tamei.    

גיטין נג ע”א: אמר חזקיה: דבר תורה אחד שוגג ואחד מזיד ־ חייבֹ, מאי טעמא? היזק שאינו ניכר שמיה היזק, ומה טעם אמרו בשוגג פטור? כדי שיודיעו. אי הכי, אפילו במזיד נמיִ השתא לאוזוקי קא מכוין, אודועי לא מודע ליה? ור׳ יוחנן אמר: דבר תורה אחד שוגג ואחד מזיד ־ פטורֹ מאי טעמא? היזק שאינו ניכר לא שמיה היזק, ומה טעם אמרו במזיד חייב? שלא יהא כל אחד ואחד הולך ומטמא טהרותיו של חבירו, ואומר פטור אני.

Once, there was a shul that sold seats, charging a higher price for the seats closest to the east wall.  At that time, there was space between those seats and the wall. Later, the congregation grew, and the gabbai decided to install new benches in that space along the east wall. These seats were then sold for a high price.

Those who had bought the original eastern seats were now in the second row. They felt this was unfair, given the high price they had paid specifically to sit on “Mizrach Vant.” They argued that the new seats should be given to them, and the second row sold to the newcomers. The gabbai countered that they still had the exact seats they had paid for, so they had no right to complain. Unable to settle the dispute, they presented their arguments before a Rav.

The Rav thought for a while and then said, “Moshe changed the name of Hoshea bin Nun to Yehoshua. Where did he get the yud? The Gemara in Sanhedrin 107a, quoted by Rashi on Bereishis 17:5, says that when Hashem took the yud from Sarai and changed her name to Sarah, the yud complained for years, until finally Hashem added it to the name of Hoshea to make it Yehoshua. But we don’t find that the hei complained that it went from being the first letter to the second letter in Yehoshua’s name. From this we learn that when someone is added in front of you and you become second, you have no right to complain.”   

Source: Rabbi Shmuel Fishbain of White Lake

[According to the opinion that invisible damage is called damage (היזק שאינו ניכר שמיה היזק), the gabbai definitely caused their seats to go down in value and is therefore liable.

Even according to the opinion that invisible damage is not called damage (היזק שאינו ניכר לא שמיה היזק), which is how we pasken, perhaps here it is considered that the gabbai was מזיד – he intentionally devalued their seats.

Even if not, perhaps here it is considered visibly damaged (היזק ניכר) because there is now another row of seats in front.

Also, even if we say היזק שאינו ניכר לא שמיה היזק, here the people are considered to be renting their seats for life. They don’t actually own part of the shul; rather, they have a right to the seats closest to the Mizrach Vant every day for the rest of their lives. And since these are no longer the easternmost seats, the gabbai is not continuing to give them what they paid for.

As to the psak of the rav in the story, the response could be that we never find that being at the front of a tzaddik’s name is more valuable than being in the middle, whereas here, it was clear to all that the Mizrach Vant seats were more valuable.]

Bechoros

Bechoros 29a: The need for hashgacha

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Bechoros 29a: The Sages permitted Illa of Yavneh to charge a fee for checking a firstborn animal for blemishes (in the absence of the Beis Hamikdash, a firstborn is permitted to eat only if it has a blemish). He charged four issar for a sheep or goat and six issar for a cow, regardless of whether he declared it blemished or unblemished.

Shulchan Aruch Yoreh Deah 18:18: The shochet, who inspects the animal for defects after slaughter, must charge the same fee whether the animal turns out to be kosher or treif, lest he come to rule leniently in order to make more money. For this reason, it is customary in some places that no butcher slaughters and checks his own animals, but rather he has it done by the community shochet.

בכורות כט. כאילא ביבנה שהתירו לו חכמים להיות נוטל ארבע איסרות לבהמה דקה וששה לגסה בין תם ובין בעל מום.

שו”ע יו”ד י”ח סי”ח הטבח צריך שיטול שכר מן הטרפות כמו מן הכשרות, הגה שלא יבא להקל להכשיר כדי לקבל שכרו מן הכשרות ולכן נהגו בקצת מקומות שאין אדם שוחט ובודק לעצמו אלא אותן הממונים מן הקהל.

Once, the kosher bakery owners of Antwerp met together and decided to stop giving the keys of their bakeries to the mashgichim. [Presumably, they didn’t want to have to wait for the mashgiach to come and open the bakery in the morning.] The Rav Hamachshir, Rabbi Chaim Kreiswirth, did not back down. Taking several of the heads of the kehillah with him, he went around on Shabbos to all the shuls and announced that until further notice, he was removing his hashgacha from all the bakeries, with no exceptions. He added that if anyone wanted bread, he permitted them to eat “pas paltar” – kosher bread baked by a non-Jewish baker.

The following Friday, an oven was set up in the courtyard of the shul, and the Rav himself, together with the heads of the kehillah, baked challah for Shabbos, for those who wished to be strict and not eat pas paltar on Shabbos.

One of the bakery owners was a member of a prominent Chassidishe kehillah, and an influential member of that Chassidus announced in shul, “So-and-so is totally reliable and I will continue to eat his products, with or without hashgacha!” And to show he meant what he said, the next morning he brought cakes and other baked goods from that bakery to shul.

Not long afterward, this man contracted a stomach illness and died. After that, no one dared defy Rav Kreiswirth’s authority in Antwerp. 

Source: Mayim Chaim, page 144

[The above quotation from Yoreh Deah 18 explains why we need hashgacha in general, rather than relying on a business owner who is a shomer Torah. But this story deals with a different aspect of hashgacha: how to handle a store where the labor is done by non-Jews. Does the mashgiach have to be present all the time, or can he make occasional, unexpected visits (יוצא ונכנס)? Rav Kreiswirth held that in a bakery, the mashgiach must be present all the time, and the only way to enforce that is by giving him the only key to the bakery.

Why wasn’t he willing to rely on occasional visits? After all, the Mishnah (Avodah Zarah 61a) says that יוצא ונכנס works, and it’s brought in Shulchan Aruch. The answer may be that occasional visits make workers afraid to do something that takes a while, such as unloading non-kosher ingredients and using them. But in a Jewish-owned bakery, which needs to be pas yisroel (the heter of pas paltar only applies when the owner is a non-Jew, as the Shach 112:7 says), lighting the oven takes only a second. If the workers were to open the bakery in the morning and find the pilot light out, they might relight it, and when the mashgiach arrives half an hour later, he would never know that anything had gone wrong.

This point is made by R’ Moshe in his teshuva requiring a mashgiach temidi on fish (Igros Moshe Yoreh Deah 3:8). These fish were sold without the scales, so the customer would have no way of knowing if they were kosher fish. He writes that if the skinning were done by hand, the mashgiach could walk in and out, and that would be enough to deter the workers from skinning a non-kosher fish lest the mashgiach walk in and catch him in the middle. But the skinning is done very fast by a machine, and it would be easy to get it done in that moment when the mashgiach’s back is turned. Therefore the mashgiach must check every single fish.]

Bechoros

Bechoros 28b: Can a rav retract his psak?

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Bechoros 28b: If a rabbi judged a case and erred, exonerating the party who owed money, or forcing the party who did not owe to pay; or he declared the clean unclean, or the unclean clean – what was done was done, and the rabbi must pay for the loss out of his pocket. But if he was an expert judge, he is exempt. Rabbi Tarfon once ruled that a cow that had its uterus removed was treif, and as a result the owner fed it to the dogs. Later they asked the Sages at Yavneh, who permitted it, because Todus the doctor said that all cows and pigs exported from Alexandria of Egypt are sterilized by having their uteruses removed. Rabbi Tarfon said to himself, Tarfon, you will lose your donkey. Rabbi Akiva said to him: No, you are an expert judge and and therefore you need not pay. 

Gemara: Why did Rabbi Akiva need to say that Rabbi Tarfon was an expert? Even if he not been, since his mistake was in an explicit Mishnah (Chullin 54a), his psak is immaterial, he never really forbade the meat, and he should not need to pay for the fact that the asker threw out the meat (because it is grama)! – Rabbi Akiva was giving two reasons: First of all, you are exempt from paying because the mistake was in an explicit Mishnah. Secondly, even if you had erred in logic (in a halachic point that is not explicit in the Mishnah), and you ruled incorrectly, you would still be exempt from paying because you are an expert.

בכורות כח ע”ב: דן את הדין, זיכה את החייב וחייב את הזכאי, טימא את הטהור וטיהר את הטמא ־ מה שעשה עשוי, וישלם מביתו, ואם היה מומחה לב״ד ־ פטור מלשלם… ומעשה בפרה שניטלה האם שלה והאכילה רבי טרפון לכלביםֹ ובא מעשה לפני חכמים ביבנה והתירוה שאמר תודוס הרופא: אין פרה וחזירה יוצאה מאלכסנדריא של מצרים שאין חותכין האם שלה בשביל שלא תלד. אמר רבי טרפון: הלכה חמורך טרפוןִ אמר לו ר׳ עקיבא: ר׳ טרפון, אתה מומחה לב״ד ־ וכל המומחה לב״ד פטור מלשלם. גמרא. ותיפוק ליה דטעה בדבר משנה, וטעה בדבר משנה חוזרִ חדא ועוד קאמר, חדא ־ דטעה בדבר משנה חוזר, ועוד א״נ בשיקול הדעת טעיתה ־ מומחה לב״ד אתה, וכל המומחה לב״ד פטור מלשלם.

There was once a rav who was mesader a get based on his assessment that the husband was generally mentally sound; his insanity was confined to one particular area of life. But in his older years, the rav learned the sugya about insanity in Chagigah 3b more carefully, re-examined the case, and decided that the husband had been mentally unfit to give a get. By this time, the woman had remarried and raised a whole family. According to the rav’s current conclusion, her children were now mamzeirim. The rav asked Rabbi Yitzchok Zilberstein whether he would be punished by Hashem for causing these children to be mamzeirim.

Rav Zilberstein responded by comparing this to various cases in Shas:

  1. We find that Tannaim and Amoraim changed their halachic rulings. For example, in Niddah 14a: “All of Rabbi Chiya’s life, he used to rule that this case was unclean, but in his old age he would rule it clean.” He was allowed to reverse his earlier psak, even though his later line of reasoning was more lenient, because the Gemara (Shabbos 152a) says that the older a talmid chacham gets, the greater his wisdom. Similarly, the Levushei Mordechai (Orach Chaim 96) was asked about a talmid chacham who used to be strict about a certain halachic question, but in his old age decided to follow the lenient opinions. The Levushei Mordechai says that he has the right to do so, because the older a talmid chacham gets, the greater his wisdom.
  • We also find that Rabbi Tarfon once ruled that some meat was treif and then changed his mind, and he was held responsible: he had to give his donkey to pay for the loss of the meat, which had already been fed to the dogs. (And Rav Elyashiv commented that Rabbi Tarfon mentioned his donkey, although he was wealthy (Nedarim 62a) and could certainly have paid in cash, to show that he was not considered like a regular debtor, who has bankruptcy rights to keep his work animal; he is a mazik, who must pay no matter what.) Doesn’t this show that the rav in our story would be held responsible for causing the children to be mamzeirim?  

Rav Zilberstein says no. Rabbi Tarfon’s case was different because he erred about an explicit Mishnah (טועה בדבר משנה). But if the rav studies and makes a mistake in logic (שיקול הדעת), his original psak is not reversed (i.e. even if the meat were still in existence, it would be fed to the dogs as per the original psak). But the rav still has to pay for the loss. Here too, this rav’s psak remains intact that the woman was permitted, and the children are not mamzeirim.

Source: Chashukei Chemed, Niddah, p. 149

[This piece in the sefer Chashukei Chemed is cryptically written, and as the author says in the introduction, “With my brief notes I was unable to cover all the wellsprings of the Torah’s endless wisdom, and I have only come to stimulate the heart of the learner; may the wise hear and become wiser.” Let’s do our job and break this question down, and then see what his sources prove.

It seems that both the asker and Rav Zilberstein started with the assumption that the earlier psak is reversed and the children are mamzeirim. The question was only whether the rav would be blamed in heaven.

Source 1) is a proof to this assumption: Rabbi Chiya changed his mind and ruled leniently, and his lenient ruling became the final halacha because he became wiser with age. Here too, the rav became wiser with age, his later psak is binding and the children are mamzeirim.

However, there is a big difference. Rabbi Chiya changed his mind about a certain commonly-asked shailah (a woman who wiped herself with a cloth that might have been bloody already, and then found blood on it). It does not say that he went back and contacted women he had declared impure, and told them that they were actually pure. He merely began to rule leniently on cases brought to him from then on. Here, on the other hand, we want to know whether the actual get ruled on by the rav is now retroactively invalid.

Source 2) comes closer: it seems to prove that the actual meat pronounced treif by Rabbi Tarfon is retroactively kosher. To this, the response is that in Rabbi Tarfon’s case, the mistake concerned an explicit Mishnah. But, the Gemara says, when the mistake was in logic (which the Gemara in Sanhedrin defines as ruling like one valid opinion when the other one is the widely accepted opinion), the psak is not reversed. The rav pays for forbidding the meat, but the meat remains forbidden. In our case, the get is still a good get and the children are not mamzeirim. And here, the rav would not pay, because there is no damage to pay for. Furthermore, in the case ofשוטה בדבר אחד (insanity in one area only) there is no clear-cut halachic consensus; indeed, this was the subject of a major controversy in the 1700’s (the Klever Get). And no two cases are alike; the psak would depend on the exact symptoms. This is all the more reason to say that the rav’s first psak stands.

However, we can ask: one of the cases in our Mishnah in Bechoros is טיהר את הטמא – “he declared the unclean clean.” On this, the Mishnah concludes: “What was done was done, and the rav must pay from his pocket.” This is certainly not talking about a rav who erred in an explicit Mishnah, because in that case his psak would be reversed; we don’t say “what was done was done.” Rather, it is talking about an error in shikul hadaas. (See as well Sanhedrin 33a which says that the Mishnah in Bechoros is talking about shikul hadaas.) Therefore, “what was done was done” – the rav‘s psak that the fruits are clean stands. So what is meant by “the rav must pay from his pocket”? What must he pay? He has caused no damage at all! Even if the fruits were subsequently mixed with other clean fruits, and even if the rav mixed them with his own hands as the Gemara says later in Sanhedrin, no damage was done.

Possibly the answer is that the idea that shikul hadaas is not reversed is only the opinion of Rav Sheishes, and Rav Sheishes would indeed say that the rav who mistakenly ruled “clean” would never have to pay; the words “he pays from his pocket” are referring only to the other cases in the Mishnah. The idea that the rav pays because he mixed the unclean fruits (thought to be clean) into the other fruits is said by the Gemara only according to Rav Chisda.

To clarify: in Sanhedrin 33a, the Gemara poses a contradiction between the Mishnah in Bechoros, which says “what was done was done,” and the Mishnah in Sanhedrin, which says that a dayan can change his mind and reverse a monetary ruling. Three answers are provided; one of them is Rav Sheishes, who differentiates between an error in an explicit Mishnah and an error in shikul hadaas. But there are two other Amoraim, Rav Yosef and Rav Chisda, who answer the contradiction. According to them, perhaps all mistaken rulings, even in shikul hadaas, are reversed. So we can propose that it might be only Rav Sheishes who says that in the Mishnah in Bechoros, the psak is not reversed.

How do we pasken? The Shulchan Aruch in Choshen Mishpat 25:2-3 seems to go like the other Amoraim, not Rav Sheishes. (In S’if 2 he brings Rav Yosef and in S’if 3 he brings Rav Chisda. The only cases where the Mechaber says the psak stands are where the psak cannot be reversed, or where the dayan carried out the psak himself.) According to this, in our case psak would be reversed and the children would be mamzeirim. (Ironically, the Gemara says according to Rav Sheishes that shikul hadaas means ruling like one opinion while the sugya d’alma, the general consensus, is like the other opinion – and Rav Sheishes himself fits this description. He is one out of three opinions in Sanhedrin, yet the Gemara in Bechoros quotes only Rav Sheishes, without mentioning his name!)

The Shach (s’if katan 14) does pasken like Rav Sheishes, but says the psak only stands in the case where the rav erroneously forbade something, because of the principle of שויא חתיכה דאיסורא – the rav, so to speak, created a new issur. But if he erroneously permitted something, even Rav Sheishes would agree that the psak is reversed. Based on this as well, the children in our story are mamzeirim.

One could still argue that perhaps our case is not שיקול הדעת because there is no halachic consensus on the subject. Thus, who is to say the rav’s second psak is correct – perhaps the first was correct? Add to that the concept of לא בשמים היא – when a rav rules on an actual case in a gray area, Hashem agrees that the halacha follows his ruling. (See the Hakdama to Igros Moshe v. 1.) The first time, the rav was approached by a woman who needed a get. He paskened on an actual case, so we say לא בשמים היא and that is the real psak on the case. But the second time, he was just learning on his own and thinking, so his conclusion may not have the status of a psak.

Finally, if this rav really held that his first psak was null and void and the children were mamzeirim, why didn’t he go and inform them? Perhaps he was following the Gemara in Kiddushin 71a, משפחה שנטמעה נטמעה – “A family that has a mamzer mixed into it, and no one knows, is permitted.” This is brought down by the Rema in Even Hoezer 2:5. The Rema explains that the one who knows about it should not marry into the family, but he should not publicize it to others. He also stipulates that this is only after they have mixed in (i.e. married into other families), but as long as they are not mixed, he should publicize it. Accordingly, it may be that all the children of the woman in our story were already grown up and married, and therefore the rav did not inform them or spread the word.]

Berachos

Berachos 6b: Being embarrassed to take tzedaka

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Berachos 6b: When a person needs to accept charity from others, his face changes colors like a krum. What is a krum? When Rav Dimi came, he said: There is a certain bird that lives in coastal cities, called a krum, which displays a rainbow effect in the sunlight.

ברכות ו ע”ב: כיון שנצטרך אדם לבריות ־ פניו משתנות ככרום, שנאמר: כרם זלת לבני אדם. מאי כרום? ־ כי אתא רב דימי אמר: עוף אחד יש בכרכי הים וכרום שמו, וכיון שחמה זורחת מתהפך לכמה גוונין.

Every time Rabbi Chaim Kreiswirth traveled to Eretz Yisroel, he would bring along large sums of money that he had raised, and would distribute tzedaka to the needy. Once he was sitting and handing out money to one person after another, when his son Reb Dov asked him, “Doesn’t the Gemara say explicitly that when a person needs to accept charity, his face turns colors like a bird in the sunlight? Yet here in Yerushalayim the takers don’t seem troubled at all.” Rav Kreiswirth answered immediately with a smile, “That’s a Bavli, not a Yerushalmi.”

Source: Mayim Chaim, p. 41

[Rabbi Shmuel Nussbaum, author of the biography Mayim Chaim, raised a question. The Yerushalmi (Orlah 6a, quoted in Tosafos on Kiddushin 36b) makes a similar statement: that one who is supported by another person is embarrassed to look him in the face. (This fact of human nature is used as a device to remember that when a live grapevine is buried in the ground and then sprouts up again, as long as the new sapling’s leaves point away from the old vine, it is still deriving its nourishment from the old one, so it is not considered a new tree, and is therefore permitted. But once its leaves point to the old vine, it is growing on its own, so it is forbidden for three years.)

But there is a difference between the Bavli and the Yerushalmi. The Yerushalmi only says that one can’t look his benefactor in the face, but Rav Kreiswirth wasn’t the benefactor. He was only a middleman, distributing funds he had collected from others. The Bavli, on the other hand, says that even in such a case, the recipient is embarrassed to have to live off tzedaka, and his face turns colors.]

Avodah Zarah

Avodah Zarah 39a: Sending chicken with a non-Jewish delivery man

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Avodah Zarah 39a: Milk, meat, wine and techeiles delivered by a non-Jew require two seals.

Shulchan Aruch Yoreh Deah 118:1: Wine, meat and cut fish that was entrusted or sent with a non-Jew requires two seals.

עבודה זרה לט ע”א: אמר רב: חבי״ת אסור בחותם אחד… חלב, בשר, יין, תכלת אסורין בחותם אחדֹ.

יו”ד קיח ס”א: יין ובשר וחתיכת דג שאין בו סימן שהפקיד או שלח ביד עובד כוכבים צריך שני חותמות.

In the early days of Lakewood, when Rabbi Ahron Kotler zt”l was the rosh yeshiva, there were 58 bochurim and 18 yungeleit learning there. The yeshiva used to buy eggs from the various egg farms in the area. Once, one of the farmers, a religious Jew, donated 180 chickens to the yeshiva. As these chickens could provide meals to the struggling yeshiva for a whole month, it was a well-appreciated gift.  He brought them to the shochet, and then to the plucker, and then sent them to the yeshiva in a delivery truck driven by a non-Jew. There was no identifying sign on them, so the bochurim asked Reb Ahron what to do.

Reb Ahron replied that if the shochet confirmed that he indeed slaughtered 180 chickens, then these could be assumed to be the same ones. “But don’t we need two seals?” someone asked. Reb Ahron explained, “Here in America there are two kinds of chickens: meat chickens and egg-laying chickens. The egg-laying hens, once they grow old and can no longer produce enough eggs to be worth keeping, are slaughtered, but their meat is very tough and difficult to eat. It is usually used for canned soup, or made into pet food. This is the kind of chickens the farmer was sending to the yeshiva. Why do we need two seals? Because we’re afraid the non-Jew might steal the meat and replace it with non-kosher. But no one would ever steal and replace chickens like these.”

The bochurim in yeshiva had to cook those chickens for eight hours before they were edible.

Source: Rabbi Moshe Heinemann

[There are two separate decrees of Chazal: the rule of בשר שהתעלם מן העין אסור – meat that was out of sight is forbidden, because we fear someone may have switched it – and the rule of שני חותמות – that one sending meat with a delivery man must put two seals on it.

The first decree is the opinion of Rav, and the Gemara in Chullin 95a challenges Rav from several baraisos. Rav successfully defends himself, and the Mechaber in Yoreh Deah 63 paskens like Rav; however, the Rema, following the simple meaning of the baraisos, paskens not like Rav.

The second decree is universally agreed upon, and the difference is as follows. Ashkenazim who follow the Rema are not worried that someone would steal a piece of kosher meat and replace it with treif meat. If he wished to steal, he would simply steal and not replace it at all. But a delivery man has the responsibility to deliver the meat. If he got hungry on the way and ate the kosher meat, he would have to replace it, or else he would be out of a job. Therefore, we are afraid he might buy treif meat to replace it. The two seals ensure that this is the original meat sent.

In Reb Ahron’s case, the delivery man would have had no motive to steal and replace. The only problem would have been “meat that was out of sight” – but Ashkenazim hold like the Rema who permits that. If there were any Sephardi boys in Lakewood at the time, they would have had to find something else to eat.]  

Eiruvin

Eiruvin 11a: How to use telephone poles for an eiruv

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Eiruvin 11a: Let us bring proof to Rav Yosef, who held that according to Rav, one may not carry in a courtyard whose openings total more than its solid wall, even if those openings have tzuras hapesachs. “If the walls of the courtyard have many doors and windows, it is good as long as the solid is more than the open.” Rav Kahana responded: That is no proof, because it is referring to openings that are in ruins. Rav Rechumei and Rav Yosef: one explained that “in ruins” means they have no doorposts, and the other explained that it means they have no lintel.

עירובין יא ע”א: לימא מסייע ליה: דפנות הללו שרובן פתחים וחלונות ־ מותר, ובלבד שיהא עומד מרובה על הפרוץ. שרובן סלקא דעתך? אלא אימא: שריבה בהן פתחים וחלונות, ובלבד שיהא עומד מרובה על הפרוץ. ־ אמר רב כהנאֹ כי תניא ההיא ־ בפיתחי שימאי. מאי פיתחי שימאי? פליגי בה רב רחומי ורב יוסףֹ חד אמר: דלית להו שקפי, וחד אמר: דלית להו תיקרה.

The original eiruv of Antwerp did not include the southern neighborhood of Berchem. In 1972, some from the Berchem community came to complain to the rav, Rabbi Chaim Kreiswirth, who appointed Reb Pinchus Kornfeld to survey the area and see if an eiruv was possible. After the survey, Reb Pinchus went over his questions and proposals with Harav Kreiswirth, who took into account the needs of young women with babies to get out of the house on hot summer Shabbosim. He inspected it at the beginning of Nissan so that it would be ready for Pesach.

The eiruv was based on the mesorah Rav Kreiswirth had: to rely on the Shaarei Tzion (siman 3), who permitted the eiruv of Warsaw based on the argument that you can place one lechi at one end of the telegraph line and one at the other, and you need not place one at every pole in between, because although the wire zigzags, the lintel of the tzuras hapesach is allowed to be crooked. The main posek opposing the Shaarei Tzion was the Mishkenos Yaakov.

The eiruv in the main part of Antwerp, on the other hand, was on a higher level of stringency, not making use of the Shaarei Tzion’s kula.

The Shaarei Tzion brings proof from a diyuk in Rashi on the above Gemara in Eiruvin 11a. On the opinion that defines “a ruined door” as one without doorposts, Rashi explains it means the sides are uneven, with some bricks missing and some jutting out. On the opinion that defines it as a door without a lintel, Rashi explains that it has no lintel at all. Why didn’t Rashi say the lintel is crooked, as he explained the doorposts? Clearly, Rashi held that a lintel is allowed to be crooked.

The Mishkenos Yaakov brings a counterproof from a Gemara on the same blatt (Eiruvin 11b) which proves that the lintel of a tzuras hapesach does not have touch the two doorposts, based on the case of an arched doorway, where the two doorposts are vertical for at least 10 tefachim and then start to curve. The curved part separates the doorposts from the lintel, yet it is considered a door requiring a mezuzah. But if a crooked lintel counts, what is the Gemara’s proof? Here the whole arch is a crooked lintel and is contiguous with the doorposts!

The Shaarei Tzion responds that Rashi would answer this based on another position of his (l’shitaso). On the halacha about an arched doorway and mezuzah (Yoreh Deah 287:2), the Taz says that according to Rashi, the two doorposts do not actually have to be vertical for 10 tefachim. They can start curving from the ground up, as long as by 10 tefachim in height they still have 4 tefachim of horizontal space between them. Thus Rashi holds the arch is actually part of the doorposts until that point. Then it becomes the lintel. But this lintel is not kosher, since by that point it is less than 4 tefachim wide! So we must use the horizontal bricks or beam above the arch, which is not contiguous with the doorposts, as our lintel; hence the proof that the top of a tzuras hapesach does not have to touch the sides.

Some time later, a talmid chacham came to visit Antwerp, and decided on his own to inspect the new Berchem eiruv. He began to challenge Reb Pinchus Kornfeld, saying that the eiruv was posul according to the Mishkenos Yaakov. What right did Harav Kreiswirth have to adopt the Shaarei Tzion’s kula? Reb Pinchus retorted with a posuk (Tehillim 87:2), אוהב ה’ שערי ציון מכל משכנות יעקב – “Hashem loves the Shaarei Tzion more than all the Mishkenos Yaakov!”

Source: Mayim Chaim p. 141

Bava Metzia

Bava Metzia 102a: Ownership of a stray cat

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Bava Metzia 102a: Doves that live in a dovecote or an attic are subject to the law of sending away the mother before taking the eggs (because they are considered ownerless), but the Sages forbade stealing them in order to keep the peace.  

ב”א קב ע”א יוני שובך ויוני עלייה חייבות בשילוח, ואסורות בגזל מפני דרכי שלום.

Rav Eliyahu Dushnitzer served as Rosh Yeshiva and Mashgiach in Yeshivas Lomza in Petach Tikva, and many Torah giants – among them Rav Elazar Menachem Shach zt’l, Rav Shalom Schwadron zt’l, and Rav Chaim Kanievsky – viewed themselves as his privileged students. Livelihood was not easy to come by in those days, and Rav Eliyahu’s revered wife supported the family by selling chickens. She ran a stall in the marketplace, and the Rav noticed that there was a certain cat that persistently roamed around the chicken stall, eating up the scraps left behind. After his wife passed away, Rav Eliyahu worried that he had halachically inherited the cat, in which case he was obligated in all laws of damages. He subsequently gathered three men together, pronounced the cat “hefker”, and sent it on its way.

Source: http://www.tog.org.il/en/Article.aspx?id=271

[Here are three approaches to understand this story:

  1. Just as the Sages viewed the doves as property of the dovecote owner for the purposes of stealing, they are also considered his “ox” and he must pay for any damage they cause. Similarly, if a stray cat roams around your property and you consistently feed it, it becomes yours Mid’rabanan and you must pay for any damage it causes. The proof that you are liable for damages is from the Mishnah in Bava Basra 23a, where it says that a dovecote must be kept at least 50 amos from the city, so that the doves shouldn’t eat other people’s food. One might argue that the Mishnah is referring to doves that were actually owned on a Torah level (e.g. he originally kept them in cages and made a kinyan on them, and only later he housed them in a dovecote where they were free to come and go). However, the Rambam clearly learns that it’s talking about doves that are owned Mid’rabanan, because in Hilchos Gezeilah 6:7-8 he brings that halacha that stealing doves in Rabbinically forbidden, and in the very next halacha, halacha 9, he brings the Mishnah in Bava Basra that one must prevent his doves from doing damage. So clearly, when you own an animal Mid’rabanan, you are liable for damages too.
  2. The Gemara in Bava Kama 56b says that if Reuven takes Shimon’s sheep and places it in Levi’s field, and it proceeds to eat the crops, Reuven must pay. This is called מעמיד בהמת חבירו על קמת חבירו. Here too, although Rabbi Eliyahu Dushnitzer’s wife was not the owner of the cat, since she caused it to come to the area, she was responsible, and now he had inherited that responsibility. The trouble with this explanation is that if so, declaring it ownerless would not help. It was already ownerless. The issue was that she brought it there.
  3. Perhaps since the cat helped Rabbi Eliyahu Dushnitzer’s wife clean up the scraps, she was happy that it came, and therefore had intent to acquire it through the fenced-in area where her chickens lived – קנין חצר.]
Taharos

Mikvaos 7:1 – Making a Mikveh out of Ice – Part II

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Mikvaos 7:1: The following substances may be used as part of the minimum volume of the mikveh: snow, hail, frost and ice… Rabbi Akiva said, “Rabbi Yishmoel disagreed with me and said that snow cannot be used for a mikveh.” But the men of Meidva testified that Rabbi Yishmoel told them to go out, bring snow and make the entire mikveh out of snow. 

Shulchan Aruch Yoreh Deah 201:31: A mikveh made of mayim sh’uvim (water that was carried in vessels) that later froze is now free of the taint of mayim sh’uvim. If it melted, it is kosher to gather. Shach: This means that it is now like rainwater and one may immerse oneself in it. 

מקואות פ”ז מ”א אלו מעלין ולא פוסלין השלג והברד והכפור והגליד… אמר ר’ עקיבא היה ר’ ישמעאל דן כנגדי לומר השלג אינו מעלה את המקוה והעידו אנשי מידבא משמו שאמר להם צאו והביאו שלג ועשו מקוה בתחילה.

שולחן ערוך יורה דעה סימן רא סעיף לא: מקוה שאוב שהגליד טהור משום מים שאובים, נימוחו כשר להקוות. וביאר הש”ך בסקע”ד: כשר להקוות, כלומר שחזרו להיות כמו מי גשמים ומותר לטבול בהן.

A rav in an American city retired, passing his position down to his son. The new rav decided to have the old mikveh, which had served the community for fifty years, checked by Rabbi Yirmiyahu Katz, a world-renowned expert on mikvaos. When Rabbi Katz checked the pipes that brought the rainwater down from the roof, he saw that they were completely posul according to all opinions. “If these pipes were ever used to fill the mikveh, it would be a posul mikveh,” he said.

Hearing these words, the young rav turned white as a sheet and was on the verge of fainting. It took a few minutes for him to regain his power of speech, and then he said, “I don’t remember these pipes ever being changed. I think they were here from the time the mikveh was built.” They called over the old non-Jewish caretaker of the building and asked him who installed the pipes, and he replied casually that he had installed them himself fifty years ago, and they had never been changed.

“Do you realize the magnitude of this problem?” the young rav cried to Rabbi Katz. “Not only is this the only mikveh in this city and the surrounding area, and all the women used it – I myself was born from this mikveh. But also, hundreds of geirim underwent their conversions here over the past fifty years. Many of them have children and grandchildren now, living all over the world. Some of these geirim and their children became sofrim, and have written hundreds and thousands of tefillin, mezuzos and sifrei torah which are sold throughout the world. Many of the geirim signed on gittin or served as witnesses for kiddushin. We are looking at a terrible churban here…” he sighed. “But,” he continued, “if the mikveh is posul, then there is no choice. It will take me years to track down all the geirim and their children and grandchildren, and get them to tovel in a kosher mikveh. I have a very difficult job ahead of me.”

With a pained expression, the rav added, “My father built this mikveh fifty years ago when he first took his position as rav. He built it with mesirus nefesh, because most of the members of the congregation then were not religious, and didn’t allow him to use the kehillah’s money to build a mikveh. They even threatened to fire him if he insisted on building it. But my father was not afraid; he raised the money elsewhere and built the mikveh. I don’t understand it! How could such a terrible stumbling block result from my father’s devotion to this cause?”

The young rav, of course, had the pipes fixed based on Rabbi Katz’s instructions, and filled up the mikveh’s reservoir with new rainwater. But his mind could find no rest; he could not stop wondering how he and his father could have caused so many people to stumble into sin.

Rabbi Katz went home. A few weeks later, his phone rang. It was the young rav from that city, calling to update him on the story.

“After you left,” he said, “I could not rest. At first, I resisted telling my father, who lives in another city, because I didn’t want to cause him pain. But in the end, I decided to simply ask my father to tell me the story behind the mikveh. I hoped I would find some heter and not have to track down all the geirim, or deal with the other resulting problems.

“I went to visit my father, and began to chat with him about one subject and then another. Eventually I turned the conversation to the mikveh. ‘Please, tell me the story behind it,’ I said. My father was surprised by the question, and then let out a deep sigh of sorrow. ‘This story brought me nothing but pain and heartache. Let’s not talk about it,’ he said. But I insisted, ‘Father, I really want to know about it. Who built the mikveh? Who installed the pipes? I want to hear every detail.’ My father sat lost in thought for a few minutes, looking like someone re-living a painful ordeal.

“Finally, he began to tell the story. ‘When I proposed building a mikveh, several baalei batim who were the leaders of the Kehillah opposed me. They threatened that if I went through with it, they would hold elections and choose a new rabbi. But I didn’t care what they said. With mesirus nefesh, I built the mikveh. For the mikveh itself, I was given a blueprint by a rav who was an expert on mikvaos. But for the rainwater pipes, he didn’t give me a blueprint, so I had the non-Jewish repairman and caretaker install them. But let me tell you what an embarrassment I suffered because of this mikveh. On the day the mikveh was finished and the goy opened the pipes to collect rainwater, a drought began. In this part of the country, it rains many times a week without fail, summer or winter. Under normal circumstances, all the reservoirs of rainwater could have been filled within one week. But on the day we finished the mikveh, the heavens closed up. This continued day after day, week after week. The baalei batim who had opposed me were laughing and saying, look how heaven is punishing the rav for making the mikveh against the will of his congregation. Surely if the mikveh were a good thing, Hashem would not hold back the rain. This proves that the rav did the wrong thing. My shame was awful.

“’And so, many months passed. Historians said that no such drought had ever hit this state before. And everyone saw that the drought had started precisely on the day the mikveh opened. One can’t imagine the disgrace that I suffered.

“’After almost a year had gone by, I spoke to another rav, crying and pouring out my bitter heart, asking him why I deserved such a punishment for making a mikveh with mesirus nefesh. The other rav said to me, “Listen, I don’t know Hashem’s chesbonos, but you can fill up your mikveh with snow or ice.” And he explained to me how to do it. The next day, I filled the mikveh with snow and ice, and it was ready to use. Amazingly, the very next day, there was a flood of rain. It was as if all the rain held back in the sky for all these months was coming down now. My embarrassment was now doubled. The baalei batim said, “Look how much Hashem hates you. As soon as you filled your mikveh with snow and ice, it rained.” So the whole mikveh story remained a painful mystery to me, and after that, I never refilled the rainwater basin. I never used the pipes installed by my worker to feed rainwater into the mikveh.’

“As soon as I heard that, I almost fainted with joy. I then explained to my father why I had been asking so many questions about this story. ‘Father, now we see how much hashgacha pratis and siyata dishmaya Hashem gave to this mikveh. It’s the opposite of what you thought: Hashem interfered in nature and held back the rain so that you couldn’t make the mikveh out of rainwater, since the pipes were posul. Hashem saw your mesirus nefesh for taharas yisroel and made a miracle.’” 

The young rav concluded telling his story to Rabbi Katz, and then added, “Although the mikveh turned out to be kosher, please promise me that you will keep this story strictly confidential.” When Rabbi Katz later published the story in his sefer, he omitted the name of the rav and the city.

The lesson of this story is that sometimes, a person may harbor complaints about the way Hashem runs His world. “I did such-and-such a good deed; why do I deserve this or that?” A person doesn’t realize that what looks to us like a punishment is sometimes actually a reward, a Divine intervention to save us. This old rav had gone around for fifty years with a grudge against Hashem. Why, he thought, did he deserve this disgrace? He was total unaware that Hashem had turned nature upside down for his sake.

Source: Tiferes Lemoshe, by Rabbi Yirmiyahu Katz, p. 221

[Besides the amazing lesson and chizuk in emunah from this story, it is tempting to try to draw the conclusion that Hashem Himself approved of the use of artificial ice for a mikveh. The trouble is that the story is not clear as to whether snow or ice, or both, were used. The language is, “I filled the mikveh with snow and ice.” Snow is natural, so would not be relevant to our question. Even if it was ice, it could have been natural ice, cut from a river or lake, assuming that the city where this took place was in an area with cold winters. However, the sentence, “In this part of the country, it rains many times a week without fail, summer or winter” indicates that the story took place in one of the southeastern states.  So, pending more details, we have no proof from this story.]

Yevamos

Yevamos 60b: Kohanim and the body of Jeremy Bentham

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Yevamos 60b: Rabbi Shimon bar Yochai said, “The graves of non-Jews do not transmit tumah through a roof, as it is written, “And you, My flocks, the flocks of My pasture, you are man” (Yechezkel 34:31). You are called “man” but the non-Jews are not called “man”.

Tosafos: The Ri said that the halacha does not follow Rabbi Shimon bar Yochai, but rather Rabban Shimon ben Gamliel, who disagrees with him in Oholos.

Oholos 8:1: A large wooden closet can block tumah from ascending.

Raavad Nezirus 5:15: The kohanim nowadays are already tamei meis, so they are not liable for the sin of coming in contact with tumah.

יבמות ס ע”ב: תניא, וכן היה ר״ש בן יוחאי אומר קברי עובדי כוכבים אינן מטמאין באהל, שנא׳: (יחזקאל ל״ד) ואתן צאני צאן מרעיתי אדם אתם, אתם קרויין אדם, ואין העובדי כוכבים קרויין אדם.

תוספות יבמות סא ע”א ד”ה ממגע. ואר״י דאין הלכה כר״ש דרשב״ג פליג עליה כדתנן במס׳ אהלות (פרק יח מ״ט כתובות עז.) והלכה כמותו במשנתנו וצריכים כהנים ליזהר מקברי עובדי כוכבים.

אהלות פ”ח מ”א: אלו מביאים וחוצצים.השדה והתבה והמגדל.

ראב”ד בהשגה על הלכות נזירות פ”ה הט”ו: מעתה טומאה וטומאה אפילו פירש וחזר ונגע פטור והכהנים בזמן הזה טמאי מת הן ועוד אין עליהן חיוב טומאה והמחייב אותם עליו להביא ראיה.

The philosopher Jeremy Bentham (1748-1832) specified in his will that he wanted his body to be preserved as a lasting memorial, and this instruction was duly carried out by his friend Dr. Thomas Southwood Smith.

In 1850, Southwood Smith donated the body to University College London, which Bentham had helped found, and from then until 2020, the body was displayed at the end of the South Cloisters in the main building of the college. Upon the retirement of Sir Malcolm Grant as provost of the college in 2013, however, the body was present at Grant’s final council meeting. As of 2013, this was the only time that the body of Bentham has been taken to a UCL council meeting. (There is a persistent myth that the body of Bentham is present at all council meetings.)

Bentham had intended this “auto-icon” to incorporate his actual head, mummified to resemble its appearance in life. Southwood Smith’s experimental efforts at mummification, based on practices of the indigenous peoples of New Zealand and involving placing the head under an air pump over sulfuric acid and drawing off the fluids, although technically successful, left the head looking distastefully macabre, with dried and darkened skin stretched tautly over the skull.

The auto-icon was therefore given a wax head, fitted with some of Bentham’s own hair. The real head was displayed in the same case as the auto-icon for many years, but became the target of repeated student pranks, with students from rival King’s College London often the culprits. The head is said to have at one time been found in a luggage locker at Aberdeen station, and to have been used as a football by students in the Quad. These events led to the head being removed from display.

In 2020, the body was put into a new glass display case and moved to the entrance of UCL’s new Student Centre on Gordon Square.

In 1965, Dayan Aryeh Leib Grossnass of the London Beth Din published a teshuva written to kohanim who were students at University College. Dayan Grossnass describes the question as follows: “Many years ago, the leading professor of that university, who was one of the most famous in the world, left a will instructing that his body be kept permanently in the hall of the university. He also instructed that at special gatherings, his body should be displayed as he looked in his lifetime, sitting at his place and giving a lecture. After he died, they removed the head from the body, mummified the body and connected an artificial head made of wax, and placed him on a chair in a glass box with wheels on the bottom to transport it from place to place, with a book in his hand, as if giving a lecture. His knees touched the glass of the box. All the time, they keep this box inside a large wooden closet next to the wall, with a door that opens and closes. Sometimes they open the closet to show the body to whoever wants to see it. When there is a gathering, they take the glass box out of the wooden closet and display it in the middle of the hall. The head that was removed from the body was mummified and placed in a small wooden box atop a platform on the wall of the hall. Occasionally, if people are interested in seeing it, they take down the wooden box and open it. According to the information given to me, it has been about 20 years since they last took the box off the platform. Anyone attending any lecture or visiting the library must pass through this hall; there is no other entrance. May kohanim pass through the hall when the body is inside the glass box inside the closet? And may they participate in gatherings when the glass box is taken out of the closet and wheeled to the center of the room?”

Dayan Grossnass then proposes two reasons to be lenient: 1) The body of a non-Jew, according to some opinions, has no tumas ohel (does not transmit tumah to those under the same roof with it); and 2) The wooden box and/or the glass box might serve as a roof over the body, which would block the tumah from ascending the ceiling of the building and spreading to everyone in the building.

Regarding the first argument, he shows that a non-Jew’s tumas ohel is the subject of a dispute between Rabbi Shimon bar Yochai (Yevamos 60b) and Rabban Shimon ben Gamliel (Oholos 18:9). Tosafos and the Rosh rule strictly, while the Rambam (Hilchos Tumas Mes 1:13) rules leniently. The Shulchan Aruch (Yoreh Deah 372:2) concludes that it is better for kohanim to be strict and avoid coming under the same roof with a dead non-Jew.

Regarding the second argument, he says that the wooden closet, although not connected to the building, is an ohel of its own, blocking the tumah from ascending to the ceiling of the building and spreading through the hall. The reason is that a large wooden closet is not susceptible to tumah, and we have a rule that anything not susceptible to tumah is able to block tumah. Although other vessels made of material that is not susceptible to tumah (e.g. stone) would nonetheless not block tumah from ascending, that is because they are physically small like any other vessel and simply can’t contract tumah for a technical reason. But a large wooden closet has the status of an ohel, not a vessel, and therefore blocks the tumah. This is explicit in the Mishnah, Oholos 8:1.

Dayan Grossnass wrote the above based on what he was told by students. Later, he visited the college himself and saw that the wooden closet was actually bolted to the floor. Thus it was definitely considered an ohel to block the tumah.

However, he counters, perhaps the closet can only block the tumah from going up, so that, for example, if the body of Bentham were in this wooden closet outdoors, a kohein would be allowed to sit on top of the closet. But in our case, the closet was indoors, and the Rambam writes in Hilchos Tumas Mes 20:1 that if a small tent stands inside a large tent, and a dead body is in the small tent, everything in the large tent becomes tamei. And although the Raavad disagrees, that is only when the small tent has its own entrance to the outdoors, and thus the body will eventually be carried out directly to the outdoors without passing through the large tent. But in our case, the wooden closet only had one exit – to the college hall. This principle is known in the Gemara as סוף טומאה לצאת – since the tumah will eventually go out through that door to the college hall, the college hall is tamei even now.

To solve this problem, Dayan Grossnass proposes that since Bentham’s body is in a glass box, and even when they take it out for gatherings, they wheel out the entire box, not just the body, this is not called “the tumah will eventually come out”. This is because the glass box is also an ohel within an ohel. But that would depend if glass has the same property as wood – does a large glass box act as an ohel?

The tumah of glass vessels is Rabbinic: because they are made from sand, Chazal gave them the status of earthenware (Shabbos 16b). Regarding earthenware, there is a dispute between Rashi and his teachers as to whether a large earthenware vessel can act as an ohel to block tumah (Shabbos 44b). But even according to Rashi who is strict with earthenware, glass certainly acts as a blocker. We see that Reb Chaim Brisker (Tumas Mes 19:1) learns that the Rambam holds like Rashi and the Raavad holds like Rashi’s teachers. Yet even the Rambam is explicit that a large glass vessel blocks tumah (Hilchos Keilim 3:3).

One objection could be raised: the glass box containing Bentham’s body has wheels and can be moved from place to place, despite its large size. (This was written in 1965, but as of 2020, the body is in a glass box without wheels.) Tosafos (Shabbos 84a) says that a large wooden vessel that can be dragged by men is considered a regular vessel and is susceptible to tumah. Rav Grossnass however theorizes that, perhaps, with glass we would not be so strict. Also, perhaps this glass box is different because it was made never to be opened.

Thus the argument to be lenient goes as follows: first of all, maybe a non-Jew has no tumas ohel. And even if he does, maybe the halacha is like the Raavad that a tent inside a tent is not a problem. And if you say, even the Raavad is strict in cases where the tumah will eventually come out – here the tumah will never come out because it’s inside a glass box. And if you say, a large box does not block the tumah because it is moveable by virtue of its wheels, maybe glass is different.

What about the box holding the head? Even though it is a wooden box made to rest, and therefore not susceptible to tumah, still it’s too small to be an ohel. Dayan Grossnass responds, based on a Chazon Ish, that that is only true according to the Rambam Tumas Mes 13:4, but according to the Raavad 28:5 even a small box is considered an ohel. So for the Rambam l’shitaso, we can rely on the Rambam’s own ruling that non-Jews are not metamei baohel. And according to the opinion that a non-Jew is metamei, we can rely on the Raavad, who holds the box is an ohel.

However, there is another problem: perhaps the wooden closet or the glass box itself has the status of a “kever” – a grave (i.e. a mausoleum)? True, the Rambam (chapter 12 of Tumas Mes) says a wooden coffin is not a kever. But the Raavad disagrees. And even the Rambam only said it regarding wood, because it’s not earth, but glass is made from sand, which is earth. And although the body is visible and burial usually means it is hidden from view, in this case the wooden closet makes it hidden, so it should be considered a kever and thus be forbidden. This is especially true in light of the bolts holding it to the floor; perhaps even the Rambam would agree that wood can be a kever in that case. To these arguments, Dayan Grossnass replies that the floor of the college hall separates the glass from the ground, so it’s not a kever.

After discussing the matter with the Tchebiner Rav, Dayan Grossnass realized that there is yet another reason to be lenient: the Raavad (Hilchos Nezirus 5:15) holds that a kohein who is already tamei (which applies to all kohanim nowadays) is not forbidden Mid’oraisa to come in contact with a meis. Since it’s only Mid’rabanan, we can rely on the opinion that non-Jews are not metamei ba’ohel. He quotes many teshuvos who relied on this combination, including a very interesting teshuva of the Maharsham (1:215) about visiting a royal museum containing Egyptian mummies.

Since Dayan Grossnass’ heter is based on a combination of several disputed opinions, we must ask: what about the rule that a sofek tumah in a private domain is always tamei, even if there are several sfeikos? To this, Dayan Grossnass provides three answers: 1) That rule applies only to a sofek about the facts, not to a sofek in the law. 2) The college hall is a public domain because many people are constantly walking through it. 3) The rule of “private domain” only applies when we’re not sure if something became tamei or not, and we need to decide what to assume. But tumas kohanim is an issur, and so it follows the regular rules of issur v’heter.

Source: Pamphlet published by the London Beth Din, 1965, #14, “B’inyan Dinei Ohel Hameis.”

[Utilitarianism teaches that people should do whatever results in the most happiness for the most people. It’s ironic that Jeremy Betham, as the founder of utilitarianism, thought he was giving people happiness by putting his body on display forever; he confidently envisioned that “if it should so happen that my personal friends and other disciples should be disposed to meet together on some day or days of the year for the purpose of commemorating the founder of the greatest happiness system of morals and legislation, my executor will from time to time cause to be conveyed in the room in which they meet the said box or case with the contents therein, to be stationed in such part of the room as to the assembled company shall seem meet.” But who did he end up benefiting? Scholars of the Torah, which teaches not utilitarianism but right and wrong, mutar and assur – from whom his strange request continues to serve as a springboard for discussion of the deepest sugyos in Shas. Indeed, everything that is done in the world is “for Israel, that they should learn Torah” (Avodah Zarah 2b).    

It’s also ironic that Bentham chose not to be buried, but according to one possibility brought up in this teshuva, he was indeed buried in the glass box, which is like sand.]

Avodah Zarah

Avodah Zarah 29b: The Photo of the Mahari Aszod

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Avodah Zarah 29b: Just as it is forbidden to derive benefit from a dead body, so too it is forbidden to derive benefit from idolatrous sacrifices. And the dead body itself – how do we know? We derive it using a gezeirah shavah from the eglah arufah.

Tosafos, Pesachim 22b: Handing an object that is forbidden to derive benefit from (issurei hana’ah) to a non-Jew is forbidden, because since it would be forbidden to do so for pay, the fact that the non-Jew is grateful to him is considered like pay.

עבודה זרה כט ע”ב: מה מת אסור בהנאה, אף זבח נמי אסור בהנאה. ומת גופיה מנלן? אתיא שם שם מעגלה ערופה, כתיב הכא: (במדבר כ) ותמת שם מרים, וכתיב התם: (דברים כא) וערפו שם את העגלה בנחל, מה להלן אסור בהנאה, אף כאן נמי אסור בהנאה.

פסחים כב ע”ב תוספות ד”ה ואבר מן החי: דכיון דבשכר היה אסור להושיט דאסור להשתכר באיסורי הנאה אף על גב דדיעבד שכרו מותר כדמשמע בפ׳ בתרא דמס׳ ע״ז (ד׳ סב.) מכל מקום אסור לכתחלה ובחנם נמי אסור דמה שמחזיק לו העכו״ם טובה חשיב כמשתכר.

Rabbi Yehuda Aszod, known as Mahari Aszod (1794-1866), was the rav of Szerdahely and a major leader of Hungarian Jewry. His great-grandson, Yehuda Goldstein, wrote a biography of him and printed it at the beginning of the Mahari Aszod’s commentary on the Torah, Divrei Mahari. Near the end, he wrote as follows:

“My great-grandfather never allowed anyone to take a photograph of him. However, many of his students wanted his picture to remember their teacher. Therefore, after he passed away, some of his students decided amongst themselves to dress him in his Shabbos clothes, place him on his chair and take a photograph; this picture is now found in many Jewish homes. However, all those who participated in this deed were severely punished: It was not long before they all died. They were punished for disturbing his holy body after death by carrying him for this purpose.”

Source: Divrei Mahari, p. 41

[The great-grandson assumes that the reason they were punished had to do with lack of kvod hameis. But one could raise a different question: maybe by looking at the photo and selling the photo, they were deriving benefit from a meis, and a meis is אסור בהנאה – one is forbidden to derive benefit from it.

In 1938, Rabbi Zev Tzvi Hakohein Klein of Berlin wrote a small sefer of teshuvos entitled Kahana Mesayea Kahana. In siman 12, he takes the position that it is allowed to photograph a dead body as a memento for the family, because this is not the hana’ah that was forbidden. Hana’ah from a dead body means taking something away from the body, such as hair, and using it. Here, the photo is taking nothing away. However, he forbids the photographer to charge a fee, because that would be making money off issurei hana’ah, which Tosafos forbids (Pesachim 22b).

Rabbi Klein mentions that there was another rav, Rabbi Yitzchok Weiss of Verbau, who forbade taking pictures of bodies, and brought proof from four precedents. Rabbi Klein proceeds to rejects each proof in turn:

  1.  Someone had a stillborn, deformed child and wanted to carry it around with him to arouse people’s pity so that they would give him tzedaka. The Pleisi (Rabbi Yonasan Eybeshutz, second perek of Hilchos Yom Tov) forbade this because one may not derive benefit from a dead body. Rabbi Klein’s response is that there, he was making money off the meis, but here, one is merely looking at a photo of a meis.
  2. The Noda Beyehuda (2:206) forbids doctors to examine a dead body in order to determine the reason for the illness and learn how to prevent it or cure it in the future. Rabbi Klein’s response is that there, the doctors are violating the honor of the meis by cutting him open, but here one is merely taking a photo.
  3. The Sefer Masa D’Yerushalayim tells the story of how they took a photo of the Mahari Aszod “in order to sell the photo” and says this was a great sin because one may not derive benefit from a dead body. Rabbi Klein responds that this was different for two reasons: they violated kvod hameis by sitting him in his chair, and they sold the photo for money. But one may take a simple photo of the meis lying in his coffin as a memorial for the family.
  4. Rabbi Yehuda Hechossid’s will says that one may not show a dead body in a grave to a non-Jew. According to this, perhaps one may not show the Mahari Aszod’s picture, or any picture of a body, to a non-Jew. Rabbi Klein responds that perhaps a photo is different from the actual body.]