Tuesday, May 22, 2012

[Tinsights.....Torah insights] 5/22/2012 08:37:00 AM

With the lack of PREparedness, the greatest of opportunities can be easily wasted.

Posted By Ploni to Tinsights.....Torah insights at 5/22/2012 08:37:00 AM

Thursday, May 17, 2012

[KollelH blog] ona'ah


In Behar, one of this week's parshiyos, the Torah commands us in regard to some of the laws of buying and selling. The pasuk says, "Vechi simkiru mimkar la'amisecha al tonu ish es achiv – When you make a sale to your fellow … do not afflict one another." The Gemara in Baba Metzia 51a derives from this pasuk that one may not overcharge when selling an item without informing the buyer. This is referred to as ona'ah. The Gemara says that if one charges more than a sixth more than the market value of an item, the sale is void. If one charges less than a sixth more, the sale is valid. If one charges exactly a sixth more, the sale is valid; however, the seller must return the overcharge.

The Rush, in the fourth perek of Baba Metzia, says that he is not sure whether one is prohibited from intentionally charging less than a sixth more than the market value. Even though the sale is valid and the seller does not have to return the overcharge, perhaps it is prohibited – for this too is considered ona'ah. The reason that the sale is valid and the seller may keep the overcharge is because we assume that the buyer will be mochel (forgo) on a small percentage. The Smah (Choshen Mishpat 227:14) says that one may not claim that he was not willing to forgo the overcharge of less than a sixth. Or, says the Rush, perhaps it is part of the normal process of transactions to charge a little more – and it is not considered ona'ah.

The Ramban, in his commentary on the Torah, says that even though the Gemara in Baba Metzia 56b derives from a pasuk that ona'ah does not apply to land, the prohibition nevertheless applies. The exclusion is only on the monetary aspect, but if one charges more than a sixth for the sale of land he will have transgressed the lav. The reason that one does not have to return the ona'ah of a real estate purchase, even if it is more than a sixth extra, is because we assume that people will forgo the extra amount – just as they would when it is less than a sixth on the sale of an item. However, in both circumstances, it is forbidden to do so.

The Sefer Hachinuch (mitzvah 337) takes a different view on this matter. He says that one is completely permitted to charge up to a sixth more than the market value of movable objects. He agrees with the Ramban that even though one does not have to return the extra amount that he charged for real estate, even if it exceeds a sixth, it is nonetheless forbidden to do so.

The Minchas Chinuch says that the Rambam agrees with the Sefer Hachinuch (that one is permitted to charge up to a sixth more for movable objects). He proves the Rambam's view that it is permitted because the Rambam says that one does not receive lashes when he transgresses this prohibition. This is because it is nitein letashlumin (one must repay) i.e. he must return the overcharge. Since the halacha is that one is not required to return an overcharge of up to a sixth, he should receive lashes in that case since it is not returnable.

We find this concept by the prohibition of hitting another. If the wound is significant enough to require damages amounting to more than a prutah, the damager does not receive lashes since he must pay money. However, if the wound does not amount to damages worth a prutah he receives lashes since he cannot repay. Therefore, if it would be prohibited to charge up to a sixth more, the seller should receive lashes since he is not required to repay.

The Minchas Chinuch, however, says that this is not necessarily proof that the Rambam's view is that one is permitted to charge up to a sixth more than the value of movable objects. This is so because, as mentioned earlier, the reason that one is not required to return the ona'ah of up to a sixth is because the buyer is mochel the extra amount. Hence, from a technical standpoint, one is required to return the extra amount – except that in this case he was mochel the obligation.

Generally, when one has a debt and his creditor is mochel him from repayment, we view the mechilah as if he paid the debt. Consequently, we cannot prove that it is permitted to charge up to a sixth more from the fact that lashes are not administered. This is due to the fact that there is an owed payment – just that it was forgiven. It is possible, therefore, that while it is indeed forbidden to charge up to a sixth more, the reason that one does not receive lashes is because it falls into the category of a lav ha'nitein letashlumin – since he indeed owed the money.

The Shulchan Aruch (Choshen Mishpat 227:6) does not rule in favor of either opinion, stating rather that it is a safek whether one may charge up to a sixth more than the market value.

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Posted By KH to KollelH blog at 5/17/2012 11:32:00 PM

Thursday, May 10, 2012

[KollelH blog] Emor

Counting The Previous Day's Sefirah

In this week's parshah we read about the mitzvah of Sefiras Ha'Omer. Interestingly the reading of this mitzvah coincides with the actual time to perform the mitzvah. The pasuk says, "u'sefartem lachem sheva Shabbasos temimos – and you should count for yourselves … seven complete weeks." The mitzvah is to count the days and weeks from the second day of Pesach until Shavuos. One is required to count sefirah at night. We learn from the word temimos that optimally one should count at the beginning of the night so that the entire night can be counted.

One who forgets to count sefirah at night may count during the day without a berachah, and then continue counting the rest of the days with a berachah. If one forgets to count sefirah at night and does not remember to count by day, he may not count with a berachah thereafter.

The following is an interesting question that can commonly arise: One forgot to count Thursday night and did not remember to count during the day on Friday. He then accepted Shabbos early and reminded himself afterwards that he had not counted sefirah. While it is technically still the day (it's still light outside), this individual has already brought in Shabbos. Do we already consider it nighttime, rendering it too late for him to count for Thursday night's requirement – and he thus may no longer count with a berachah? Or does the fact that it is actually still daytime enable him to count, even after he has accepted Shabbos?

In answering this question some Achronim refer to a similar halacha from the Taz. The Taz (Teshuvos 600) discusses a scenario where a community did not have a shofar on Rosh Hashanah, which fell out on Friday. After the community accepted Shabbos early, a non-Jew brought them a shofar. Here's the question: Do we still consider it daytime and thus the shofar can still be blown, or is it nighttime and there is no longer a mitzvah to blow shofar? The Taz gave two reasons for why they could blow shofar. First, accepting Shabbos is similar to making a neder, whereby if it was done b'taos (mistakenly) it is not valid. Since the community would not have accepted Shabbos if they knew that they would be receiving a shofar afterwards, the acceptance was done b'taos – and is not valid.

Second, the Taz, quoting the Beis Yosef in the name of the Smag, says that in regard to calculating the eighth day for a bris milah we only look at whether it is actually day or night. It does not matter if one davened Ma'ariv or accepted Shabbos early; if it is still day the bris will be eight days from the day, not from the night. The Vilna Gaon explains that mitzvos that are not dependent on Shabbos, even if one accepts Shabbos early, are considered as if done during the day. Based on this the Taz ruled that they could blow shofar – even after accepting Shabbos.

Reb Moshe Feinstein (Igros Moshe Orach Chaim 4:99:3) discusses whether the Taz's ruling can be applied to the question of Sefiras Ha'Omer. The first point that the Taz used to permit the community to blow shofar after they accepted Shabbos early was that it was considered that they accepted Shabbos b'taos, since they would not have accepted Shabbos had they known that a shofar was going to be brought. Reb Moshe says that this reasoning can only apply if one only accepted Shabbos (i.e. said "Mizmor shir l'yom haShabbos), but has not yet davened Ma'ariv. But if one already davened Ma'ariv, we will not consider the acceptance of Shabbos to be b'taos.

This is because there are several variations from the Taz's scenario. In the Taz's example, the ruling affected an entire community. When an entire community mistakenly accepts Shabbos early, even if they davened Ma'ariv, they do not repeat Shemoneh Esrei. Regarding Sefiras Ha'Omer, however, we are generally discussing an individual who forgot to count the night before. The halacha is that an individual must repeat the Shemoneh Esrei if he mistakenly accepts Shabbos (see Shulchan Aruch Orach Chaim 263:14). Therefore if we consider the individual's acceptance of Shabbos to have been done mistakenly, it will result in rendering the seven berachos that he davened in Shemoneh Esrei to be berachos levatalah – since he must repeat Shemoneh Esrei. How can we assume that in order to fulfill a mitzvah mi'de'rabbanan (according to many opinions Sefiras Ha'Omer is only mi'de'rabbanan nowadays) one would not have accepted Shabbos, if by doing so we create seven berachos levatalah? And perhaps even if it was in order to gain a mitzvah de'oraisa – if we are discussing an individual's acceptance of Shabbos where he already davened and will have to repeat Shemoneh Esrei – we would not consider his acceptance of Shabbos to be b'toas. This would leave him with seven berachos levatalah.

In other words, in order to nullify one's acceptance of Shabbos we must weigh all of the affects it will have and determine whether it is beneficial for him.

Based on this I am thinking that it would depend on what day of the omer this occurred. There are seven berachos in the davening on Shabbos. Additionally, there are sheimos that may only be said in a berachah; otherwise they are levatalah as well. In total there are 26 berachos and sheimos levatalah if the acceptance of Shabbos is considered b'taos. If this scenario occurs after the 27th day of the omer, the scale is tilted in favor of considering the acceptance of Shabbos b'taos. Since (according to the way many Achronim explain the Bihag) if one does not count sefirah for an entire night and day he has lost the mitzvah, and all of the berachos that he recited until that day are retroactively levatalah, it would be more beneficial for him to nullify his acceptance of Shabbos and remain with fewer berachos levatalah.

Concerning the halacha in this circumstance Reb Moshe rules that (regardless of what day in the omer one is up to)even after one has davened Ma'ariv, and accepted Shabbos, he may count the sefirah of the previous day – provided that it is still daytime.

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Posted By KH to KollelH blog at 5/10/2012 10:45:00 PM