Tuesday, July 31, 2007

Two Shorts - Slippery Slope of Organ Donation; A Defense of Rav Ovadiah Yosef

Rather than developing them as separate posts.

1) This is an example of the slippery slope in action. You declare some arbitrary point in the death process "brain death," and give doctors the ability to terminate life at that point -- and in other contexts, give doctors to consider the quality of life rather than the value of human life, and a case like this is just waiting to happen: an attempt to hasten death of someone whose quality of life is low, and short-lived, in order to harvest the organs to save someone whose life is worth saving.

Of course there are procedures in place to try to prevent things like this. From the article:
The case came under scrutiny by medical and law enforcement authorities after the operating room staff expressed concerns about the actions of the doctor and of the nurse who was administering the drugs. Under state law, transplant doctors cannot direct the care of organ donors before they are declared dead.
And I am not making any definitive statements here about the merits of organ donation. Just pointing out that the slippery slope argument is not without its own merit.

2) In defense of Rav Ovadiah Yosef:

Sure, he does not speak PC by anyone's conception of it. And his words were somewhat misogynistic. He speaks to his audience, which is Sefardi and different culturally that us.

And I don't know the exact context of his remarks, which would clarify. The article is making it more controversial than perhaps it should be.

Rav Ovadiah Yosef's knowledge is literally encyclopedic. He knows so much, so many sources, so comprehensively. And it takes someone in the know somewhat in order to appreciate it. I recall a while back, when I was criticizing YULA over some other issue, that there was another issue. Some high school student there had written an article criticizing Rav Ovadiah Yosef over some position he had taken, where that student had trouble even teitching a Rashi. As such, he had no idea who he was going up against -- like some kid taking AP physics challenging Einstein.

Rav Ovadiah Yosef is convinced that the halacha should be X -- that women should say the blessing over Shabbat candles before lighting them. Meanwhile, many are apparently doing Y -- lighting the candles, then saying the blessing. (Note: My mom's custom and wife's custom is Y - light the candles, cover the eyes and say the blessing, then uncover the eyes and look at the candles.) On the side of practice Y are many Ashkenazic rabbis and a few Sefardic sources.

Meanwhile, Rav Ovadiah Yosef, who is a great and extremely knowledgeable posek, declares that X is the halacha. If he were saying this to men for some halachic practice, of course they would all follow. Because they recognize that this is halacha and he is a posek haDor. But when it comes to this practice of women -- for women are the ones who light the candles -- he is facing off against a mimetic tradition. And this is how their mothers did it, and how their grandmothers did it, in many cases. But this mimetic tradition, he holds, should give way to paskened halacha. It might be that these women can even muster an halachic argument or two why their way should be correct. And so, these women, in stonewalling and arguing, are entering into a halachic fray against someone who knows so much about it that they are nothing. They don;t realize the heavyweight that they are up against, and this can be quite frustrating. In such a case, indeed, they should stick to cooking the chulent, which is what they in fact usually do, and not enter halachic debates that they are entirely unqualified to enter.

Rav Ovadiah Yosef was not saying that if their was a yoetzet halacha, who taught herself the halacha and the relevant sources, thought about it, and gave a pesak or opinion, that she should not do so, because of a misogynistic belief that a woman's place is in the kitchen, barefoot and pregnant. (Though of course that woman should realize who she was waging battle against.) He was arguing against this mimetic tradition and an unwillingness of women to abandon custom when he, a posek, opposed it, something that would likely not happen if he declared the same to men. Your Bubbe, he is saying, is not a posek, and this issue of when to say the bracha is a halachic matter.

In fact, the article says this directly:

In addition, he admonished women for following in the steps of their mothers in the order of the recitation of the blessing instead of adhering to his opinion.

"It has to be announced that women should not listen to the voice of their mothers or grandmothers not to continue with this mistake," he warned.

He should do better to realize that what he says to this audience, where such language is acceptable, will be taken and misunderstood by the public at large. Of course, it might be that he knows this and does not care, because always having to pay heed to this stands in the way of greatness.

The responses of the women who responded shows that they entirely misunderstood what he was saying:

"The statements of Rabbi Ovadia that are meant to leave women in a state of ignorance, endanger the continued existence of the Jewish nation and therefore I condemn his words," she added.

Liora Minka, head of Emunah, an organization that promotes women's Torah study, also strongly disagreed with Yosef.

"Torah learning for women is very important," she said. "It is only a natural development, even in the ultra-orthodox community, that women will be integrated in Torah study."

He was not saying here that women should remain ignorant. He was not saying that women shouldn't learn. He was saying that mimetic traditions from Bubbes does not have bearing in the Beit Midrash -- at least in this instance.

Thrips On Strawberries

Note: Not intended at all to be pesak halacha.

So this was linked to on Areivim -- new issues regarding a procedure of cleaning strawberries. Click on the picture to see it bigger, so as to read it.

Basically, they found infested California strawberries from four different brands. After soaking and stirring the strawberries in soap water and then rinsing it under a strong stream of running water, a few thrips remained. Another method (to kill the thrips and cause them to lose their grip) produced the same results - a few thrips left.

This lab concluded that one should use one of the other gadol-certified methods - approximately (read for more details):
1) peel the strawberries and then wash them under running water.
2) Cut off the green leaves and a thin layer of fruit from the top, cut off any deep crack or hole, soak for three minutes in soap water, and rinse and rub every strawberry under running water.
3) The aforementioned procedure of soaking, rinsing, rubbing done 3 times (but I guess not cutting off the green top), after which they may be eaten completely ground, cooked, or baked.

The image also contains answers to whether something is miut sheaino matzui, etc.

I grew up with a milder form of procedure 2 (but perhaps this was before extreme infestation) -- I would cut off the green leaves and a thin layer of fruit, where the bugs might hide or run from, and then wash the entire bowl of strawberries. (But would not soak for three minutes in soap water, etc.) Perhaps nishtaneh hatevah and we have more thrips in current infestations, or perhaps I've been eating thrips all along.

For example, in this news report from 2006, about thrip attacks on strawberries:
Dale Secher is President of the Wisconsin Berry Growers Association but also owns a farm that's been hit with a wave of Eastern Flower Thrips. For him, this is a quality control issue. The berries look different, taste fine but are not up to his standards.

UW Bug expert Phil Pellitteri has only been studying this for a week but he's heard of infestations from Appleton to Racine to Madison . The small bugs attack the plant's flowers. When the berries ripen, Pellitteri says they turn bronze in color, are smaller and seedier but taste fine. Pellitteri says there's nothing for consumers to worry about.

Eastern Flower Thrips are nothing new. They're found mostly in greenhouse plants but seeing the tiny bugs in such waves in a widespread area is different even for bug expert such as Pellitteri. He says he's never seen anything like this in his twenty-eight years of running the UW-Madison's diagnostic lab.
Thus, it may well be that these infestations at such levels are indeed something new, and nishtaneh hateva -- the metzius of the prevalence of this bug has changed.

However, to the average Jew, this approach may well come off as crazy. It is one thing to say that due to increased infestations this year, it is impossible to prepare strawberries in a normal way, so one should not buy strawberries at present. Such has probably been declared in the past about other produce, and this seems like a normal point. Perhaps because of the "gimme" culture, or a desire to find an halachic solution to this issue, they find ways that would be successful in removing all thrips so as to permit the fruit.

But to someone not used to it, telling him that the only way to eat strawberries is to peel them -- he'll look at you like you are trying to impose a new, crazy chumra, over the normal way to eat strawberries. He's never prepared strawberries like this in the past! And it seems like this would not only take away from the beauty (and thus appeal) of the strawberry, but also cut away the tastiest part.

The same goes for soaking in soap water. We wash dishes with soap, but food?? Wouldn't soaking food in soap cause it to absorb a soapy taste? Wouldn't is take away from the strawberry's taste? Even if it would not, the procedure makes it somewhat unappealing -- even if you don't taste the soap, you imagine that there is soap absorbed into the flesh of the fruit.

But if such is the only way to ensure its kashrut, so be it. It could use some better PR and presentation, though, in terms of the first thing I said, for those who are not ready to soak their fruit in soap water.

Now on to my ruminations.

I wonder whether this is true for every strawberry. For matzah that they were unsure if it was leavened, there were signs -- cracks in the surface like the antennae of grasshoppers. So too, perhaps, there are signs that a particular strawberry has been infested.

To cite from the aforementioned news article:
For him, this is a quality control issue. The berries look different, taste fine but are not up to his standards.
The small bugs attack the plant's flowers. When the berries ripen, Pellitteri says they turn bronze in color, are smaller and seedier but taste fine.
Thus, if we are speaking of the same thrips (we seem to be), a strawberry attacked by thrips in its development will be smaller and seedier, and perhaps bronze-ish in color.

When this kosher lab inspected these boxes of strawberries for infestation, were these signs present? I don't know -- perhaps they later spread from strawberry to strawberry after harvesting, but perhaps not.

If so, if there is a much stronger chance of infestation on such strawberries as opposed to others, perhaps we can take strawberries which are less likely to be infested and use a lesser procedure on them, which would then bring us to miut sheaino matzui. (See the image above for a brief discussion about miut sheaino matzui.) With "a more definitive method,"they found one thrip remained amongst 300 strawberries. But choosing among strawberries for signs of infestation may reduce that even more, and maybe then it would not be a miut hamatzui.

There are other signs of thrip infestation:
Flower thrips (in strawberries):
Thrips invade strawberry fields from blooming citrus, clover and wild flowers. Although thrips are not strong fliers, winds aid their movement into flowering strawberry fields. Thrips rasp the portions of the strawberry flower that develop into fruit, causing it to develop poorly. Damaged green fruits may become bronze or grayish and very fine shallow cracks may develop in their surfaces. As these fruits ripen, they remain dull in appearance. Thrips damage can easily be mistaken for damage caused by powdery mildew or by spray burn. This insect occurs on every farm in every year and may require control measures.
Furthermore, we have this form of thrip damage:
The presence of dark colored spots of excreta adjacent to light colored feeding zones are some typical signs of thrips damage. They may be collected by a variety of means. For example, species found on vegetation may be collected by sweeping.
One should think that it is possible to distinguish thrip-damaged strawberries, and treat them specifically.

Of course, I am no entomologist, and don't know anything about the metzius of this other than what I read on the Internet. Those who are paskening may well know more about the specifics of the issue, and of the halachot and how they apply.

I also wonder -- thrips are presumably nothing new, so what did generations past do? We don't hear of Chazal soaking their strawberries in soap water. To an extent, this is parallel to the question of copepods (though there are indeed nishtaneh hateva aspects to copepods in terms of the way we collect and treat our water.)

However, the prophet Amos enabled people to eat infested sycamore figs. Amos 7:14:
יד וַיַּעַן עָמוֹס, וַיֹּאמֶר אֶל-אֲמַצְיָה, לֹא-נָבִיא אָנֹכִי, וְלֹא בֶן-נָבִיא אָנֹכִי: כִּי-בוֹקֵר אָנֹכִי, וּבוֹלֵס שִׁקְמִים. 14 Then answered Amos, and said to Amaziah: 'I was no prophet, neither was I a prophet's son; but I was a herdman, and a dresser of sycamore-trees;
The dresser of sycamore trees, is has been determined, is one who cuts sycamore figs so that they ripen early. The sycamore wasp laid her eggs inside these figs and if they were permitted to develop, the fruits would taste bad and would only be fit for animals. By ripening early, the figs tasted good, even though there were developing wasps/eggs inside.

And even if you say this is Biblical practice recorded in Navi, from which we cannot extrapolate halacha (even though is is gilui milsa beAlma), Chazal also held that certain types of tolaim were permitted when developing inside produce. See Chullin 67b. All that is forbidden is the sheretz which is shoretz al haAretz, and a brayta says that that excludes sheratim inside various produce. Now, Shmuel teaches that certain sheratzim in certain produce is forbidden. And they explain/reinterpret the brayta according to him, that it refers to ones which became wormy (hitlia) after it was separated from the ground, but if when connected to the ground, the fruit is considered as the ground and so it was shoretz on the ground. (But see my previous post about whether we should really follow forced "explanations" of braytot.) Rav Pappa in interpreting Rav Huna makes a statement about what Shmuel would have to then hold, which is taken as evidence by some (e.g. Rav Achai Gaon, Rif, Ran) that we hold like Shmuel. But there are other braytot (which are also "answerable" to Shmuel) which seem to suggest a straightforward reading of the first brayta, and against Shmuel, so some (like Rabbenu Tam) hold against Shmuel.

Developing tolaim, in the mindset of Chazal, was probably a stage of rot leading to spontaneous generation of the bugs. Thrips occasionally reproduce via parthenogenesis (asexual reproduction) but mostly from eggs laid either on the surface of the fruit or else in slits the mother thrip cuts into the fruit, depending on the species. To cite Wikipedia:
To survive the winter temperatures most thrips species over-winter as either adults or as pupae under ground litter. A typical flower thrips generation time will be from 7 to 22 days depending on the temperature. The eggs are about 0.2 mm long and reniform (kidney shaped), and may take on average 3 days to hatch. Thrips have 2 larval stages then go through a prepupal and a pupae stage, with the adults taking 1 to 4 days to reach sexual maturity. In the two suborders, the females of the Suborder Terebrantia are equipped with an ovipositor which they use to cut slits into plant tissue into which they insert their eggs, one per slit, while females of the Suborder Tubulifera lack an ovipositor and lay their eggs singly or in small groups on the outside surface of plants.
We will deal with the most problematic aspects first. Mature, adult flying thrips are obviously the most problematic of them all, because besides whatever issues we may have of them when on the fruit, we saw that they also fly (assisted by or carried by the wind) from nearby flower fields on to the strawberries. And Rav Ashi asks whether if it separated from the fruit into the air (and then was caught), whether that is considered forbidden (because of being shoretz) on the ground. And the gemara leaves this as a teku, such that the question is unresoloved, which means in case of Biblical prohibitions, we rule leniently. However, I believe that we say that Biblically, safek deOrayta lekula, and that safek deOrayta lechumra is Rabbinic. If so, we may be dealing from here on, in terms of these, as a Rabbinic prohibition rather than Biblical, and combined with other factors, might solve the problem. (Of course, if it took flight, there is a possibility -- I'm not sure how remote -- that in the middle they landed and swarmed on the ground.)

However, are the thrips on the strawberries really these thrips which have taken flight? According to this page on Avocado thrips (I am assuming strawberry thrips are similar), thrips have the following lifespan:

Table 1. Biology of avocado thrips on Hass avocado at three different temperatures.

Biological Attribute Temperature 20oC (67oF) Temperature 25oC (77oF) Temperature 30oC (86oF)
Average adult life span 14 days 10 days 3 days
No. eggs laid per female 31 eggs 20 eggs not determined
Egg to adult development time 27 days 20 days 16 days
No. days for eggs to hatch 14 days 11 days 9 days
Proportion of Females 0.69 0.62 0.58
Net Reproductive Rate 15 5 not determined
Population Doubling Time 7 days 10 days not determined
I assume it is fairly hot right now in California, so 3 days should be the lifespan. But even assuming a 14 day lifespan, those original thrips which flew from the nearby clover and wildflower fields should be dead. The new thrips were hatched from eggs laid on the surface of, or slightly beneath the surface of, the fruit.

The live thrips we have on our fruits may well be ones that were hatched after the fruit was harvested, in which case perhaps even according to Shmuel they would be permitted. And otherwise they were hatched while the fruit was attached to the ground, in which case it is a dispute amongst Geonim and Rishonim whether they are forbidden or permitted.

However, presumably that dispute was about worms and such in the fruit, not on the surface of it. Rav Ashi asks about toalim that crawled upon {or to} the roof {/surface} of the fruit, and the question is left unresolved, as a teku. So once again, safek deOrayta lechumra.

Do we know, though, that these thrips crawled {were shoretz} on the surface of the fruit. Part of the problem of washing the strawberries is that the thrips stick themselves into the fruit and do not let go, as they feed on the fruit. If so, are they really moving over the surface of the fruit after hatching? This is a question about the metzius, and I am not sure of the answer. We should determine it. Regardless, although they are on the surface of the fruit, I don't think they leave the surface of the fruit to crawl on the ground and then return.

Perhaps, then, we can find a way to permit the strawberries. These adult thrips are small (1 mm or less, hatching from eggs which are .2 mm (=200 microns). They are hard to see without the help of a magnifying glass and are not moving around such that they look like they may be part of the fruit. We might be able to bring in that the Torah was not given to malachei haShares, to angels, but rather to humans. And that in previous generations they ate strawberries without soaking them for long periods in soap, then squishing them up. This might not be sufficient in and of itself, since now we are aware of the issue and they are visible with the right checking, etc. But then perhaps we can combine a safek or a sefek sefeika, such as perhaps these are permitted based on the brayta, if these thrips developed after the fruit was detached, or (if we don't hold like Shmuel), when they were attached. And perhaps the thrips did not swarm on the surface of the fruit, etc. And if the fruit does not show immediate signs of infestation, and looking at it quickly we do not know that there are thrips on it, and we then take steps which are partially effective in removing thrips -- cutting off the leafy top and a bit of flesh under it and rinsing it well, perhaps we would be able to say that we do not know that there is a miut there, and even if there, it might be permitted to eat it anyway, or else only Rabbinically forbidden.

Once again, I should stress that I did not look sufficiently well into the metzius of the matter or into the halachic aspects of the matter. This was just recording my initial impressions of the matter. And do not act based on what I say here. Consult your local Orthodox Rabbi.

Monday, July 30, 2007

Eating Potatoes From The Chulent During The Nine Days

(Important note: This post is not intended to be halacha lemaaseh. Furthermore, the development of the halacha has been in stages, so I might state something as halacha at an earlier stage which is subsequently forbidden, at a later stage.)
(Three sections follow: Eating Potatoes, Chulent and Kugel on Erev Shabbos, and The Nine Days and Lent.)

Eating Potatoes From The Chulent During The Nine Days.
That was the question I was pondering. Deep, I know. Can you take a potato from the Shabbos leftovers and eat it during the nine days? We have an ambidextrous dilemma -- on the one hand, it is (purportedly) fleishigs. On the other hand, it is not meat, and meat is what was forbidden.

Right at the outset, I will lay out two conclusions. First, is should not be forbidden. Second, as a matter of actual practice, alas, it is.

In a previous post, I discussed the temporal extension of the practice of not eating meat and drinking wine -- from a prohibition that the gemara took pains to limit to the seuda hamafsekes on erev Tisha beAv, but only if from the sixth hour of the day and on -- to other times, such as the week of, the beginning of the month of, or the entire three weeks. Read there.

This post is dedicated to a different issue -- rather than a temporal extension, a material extension to what types of food were prohibited.

The gemara, brought down lehalacha by the Rif, limits the prohibition of wine and meat.
{Taanit 30a}
ולא יאכל בשר ולא ישתה יין:
תניא אבל אוכל הוא בשר מליח ושותה יין מגתו

בשר מליח עד כמה
אמר רב חיננא בר כהנא אמר שמואל כ"ז שהוא כשלמים יין מגתו עד כמה כל זמן שהוא תוסס
דתניא יין תוסס אין בו משום גלוי
וכמה תסיסתו ג' ימים
"Nor may he eat meat nor drink wine":
They learnt {in a brayta}: But he may eat salted meat and drink wine from his vat.

Salted meat, until what? Rav Chanina bar Kahana cited Shmuel: So long as it is like the Shelamim {salted for three days, as long as the Shelamim may be eaten}.
Wine from his vat, until when? As long as it is fermenting, for they learnt {in a brayta}, fermenting wine does not have an issue of being left standing uncovered, and how much is its period of fermentation? Three days.
It is quite possible that grape juice, not having fermented, does not have this status here. But that will also hook into issues of using grape juice for the simcha during the Pesach seder. (And practically the forbade win from the vat as well for the seuda hamafsekes, so it is to no avail anyway.) Perhaps it is best to leave the definition of wine alone for now and focus on meat.

Salted meat is expressly allowed. This is meat that has been salt-cured for three days. Some examples of salt-cured meat, to the best of my knowledge: corned beef is salt cured; pastrami is corned beef that has also been smoked.

Interestingly, the halacha is also that when a son steals money from his parents and uses it to buy and gorge himself on meat and wine, he is a ben Sorer uMoreh, if the meat is such salted meat, he is not declared a ben Sorer uMoreh. Perhaps because it is not meat, or at least not the meat that is associated with extreme simcha, such that he is not excessively partying with ill-gotten gains.

What about chicken, or other fowl? Well, it actually has the same rule in terms of ben Sorer uMoreh (as per Rava), so perhaps we can extrapolate from there. After all, the general idea here is avoiding extreme simcha, joy. And you cannot fulfill joy with salted meat or with fowl, but only a chagiga will work. I would point out, on the other hand, the Mishna just said basar, meat, and we have one exclusion here. And in terms of chullin and elsewhere, meat is quite often inclusive of besar of, the flesh of fowl.

Shiltei haGiborim cites those reasons to exclude fowl from the prohibition, in the name of the רבינו שב"ט. Conversely, he suggests the issue is not only avoiding extreme joy but also eschewing the lessening of the mourning (and rather increasing it), such as not to forget the anguish of the destruction of the Temple. Therefore he suggests that fowl should be prohibited as well. (And so does Tur.)

(Note that I am omitting other analyses of salted meat and fowl -- that one reason for the salted meat is that is has lost some of its good meat taste, a reason not present for fowl.)

He also cited the Smak -- Sefer Mitzvot Ketanot (Rav Yitzchak of Corbeille, a 13th century Tosafist) that since most of their meat was meat salted for more than two days (thus, three days), one should forbid also that. And Tosafot on the daf (Taanit 30a) suggests the same. Specifically, Tosafot states:

"And even though the Shas says that salted meat is permitted so long as it is not like the Shelamim {peace-offering } that is to say, that more than two days passed from its slaughter -- even so, for us, it is forbidden to eat meat even if it was salted from a long time, since we are accustomed {regilim} to eat salted meat. And so too he needs to reduce his drinking, that if he was used to {ragil} drink ten cups of beer or another drink, he should only drink five. And he needs to change his place where he is used {ragil} to eat, just as was the practice of Rabbi Yehuda beRabbi Illai, who sat and ate on erev Tisha beAv between the oven and the double-stove, an unattractive place."

This, I think, sheds light on what the Smak is saying as well. Since most of their meat was salted meat, this is the normal practice to eat such meat, and if one is reducing from one's usual practice during the seuda hamafsekes, he should reduce here as well.

This practice of Rabbi Yehuda beRabbi Illai, by the way, follows in our gemara, and is recorded lehalacha by the Rif:
אמר רב יהודה אמר רב כך היה מנהגו של ר' יהודה בר' אלעאי ערב ט' באב מביאין לו פת חריבה במלח ושורה אותה במים ויושב בין תנור וכירים ואוכלה ושותה אחריה קיתון של מים ודומה כמי שמתו מוטל לפניו:
Rav Yehuda cited Rav: Such was the custom of Rabbi Yehuda beRabbi Illai: on erev 9th of Av, they would bring him dry bread with salt, and he would immerse it in water, and sit between the oven and stove and eat it, and he would drink afterwards a jug of water, and his manner was like one whose dead relative lay before him.
The part about changing accustomed practice is also a gemara cited lehalacha by the Rif:
תניא כלישנא קמא ותניא כלישנא בתרא
כלישנא בתרא הסועד ערב ת"ב אם עתיד לסעוד סעודה אחרת מותר לסעוד בשר ולשתות יין ואם לאו אסור
תניא כלישנא קמא ערב ת"ב לא יאכל אדם שני תבשילין ולא יאכל בשר ולא ישתה יין רבן שמעון בן גמליאל אומר ישנה א"ר יהודה כיצד משנה היה רגיל לאכול שני מיני תבשילין אוכל מין אחד היה רגיל לסעוד בי' בני אדם סועד בחמשה היה רגיל לשתות בי' כוסות שותה בחמשה בד"א מו' שעות ולמעלה אבל מו' שעות ולמטה מותר:
There is a brayta like the first phrasing {of Rav} and there is a brayta like the latter phrasing.
Like the latter phrasing: If one eats on erev 9th of Av, if he will later eat another meal, it is permitted to eat meat and drink wine, and if not, it is forbidden.
There is a brayta like the first phrasing: On erev 9th of Av, one should not eat two dishes, nor eat meat not drink wine. Rabban Shimon ben Gamliel says: He should change {his accustomed practice}. Rabbi Yehuda said: How should he change? If he was used to eating two types of dishes, he should eat only one. If he was used to eat with ten people, he should eat with five. If he was used to drink with ten cups, he should drink five. When are these words said? From 6 hours and one, but from 6 hours and earlier, it is permitted.
I believe that it important to read this Tosafot carefully. He is not saying that meat now includes all meat, such that we disregard the gemara which exempts salted meat. Rather, we are ragil, accustomed, now to eat salted meat, such that the other part of the brayta, and the practice of Rabbi Yehuda beRabbi Illai applies.

Thus, salted meat is not forbidden as a category of meat, but rather as a category of ragil.

This is quite important, in my humble opinion, because where Tosafot was talking, he was speaking of the seuda hamafsekes from 6 hours and on, just as the gemara was talking about. And the custom then developed to extend it to other times, such as the 9 days or associated time periods, depending on the particular minhag.

This temporal extension, in terms of what was it extended? The answer is that it was extended only in terms of meat and wine. It was not extended in terms of changing from regular practice. Thus, if you look in Shulchan Aruch -- which is lehalacha how to practice today, he mentions that one accustomed to drinking ten cups of beer should only drink five. But where does he say this? Only in regard to the seuda hamafsekes. He does not say this in regard to the 9 days, and other time periods. (And so too those who forbid even beer during the seuda hamafsekes, it is only in this regard but not to the full 9 days.) Thus, it is clear that only the meat and wine aspect of the seuda hamafsekes were temporally extended.

What, then, of salted meat? Should it be temporally extended for the 9 days (or for the week of Tisha beAv, or from the 17th of Tammuz)? Logically, if this is an extension of the seuda hamafsekes practice, then it should not. And indeed, it is an extension of the seuda hamafsekes practice -- it is not for nothing that it is the pair of wine and meat that is forbidden, quite clearly borrowed from the seuda hamafsekes of Tisha beAv.

However, the Bet Yosef brings a different analysis of this prohibition of 9 days (or other time period), citing the Teshuvat Ashkenazit. It is mitaam neder, and it is thus as if he vowed not to drink wine or eat meat during this time period. Thus, everything under the category of meat and wine is forbidden and everything else not. Thus, tavshil shel basar -- that is the potato cooked in the chulent, for example, which I'll eventually get to, and chometz shel yayin, vinegar of wine, are permitted. So too, rotav shel basar, gravy, is not meat. And taarovet shel basar, some food which contains an admixture of meat, is also not considered meat, and should be premitted. (And so in fact does the Aruch haShulchan say.) Under this theory, there should be no exceptions for salted meat, since it is in fact meat.

And the Shulchan Aruch brings down lehalacha a yesh mi sheOmer {but only cites him} that those who are accustomed to not eat meat during this time span {or 9 days, etc.} are allowed tavshil shel basar -- the potato out of the chulent -- and are forbidden in meat, even salted meat and flesh of fowl.

Shulchan Aruch also brings down that different people have different customs. Of the people who have the custom not to eat meat and wine during this time, some have the custom not to do so for the week of Tisha BeAv, some have the custom for the 9 days, and some have the custom not to do so from the 17th of Tammuz.

A bit later, he says that if someone in a location where they have a custom not to eat meat does so, he is doing wrong, and, to cite Kohelet 10:8:
ח חֹפֵר גּוּמָּץ, בּוֹ יִפּוֹל; וּפֹרֵץ גָּדֵר, יִשְּׁכֶנּוּ נָחָשׁ. 8 He that diggeth a pit shall fall into it; and whoso breaketh through a fence, a serpent shall bite him.

I can see the argument that this has the status of neder, a vow. Especially since minhag is often mitaam neder.

(I still have several sources to read on this score, though.)

Yet, I seriously wonder whether the nature of the vow is of one who vows off meat and wine, in those words. Rather, it is a vow to keep with the custom.

There is a related dispute in the commentaries of Tur and Shulchan Aruch about one who vows to not eat meat and wine from the 17th of Tammuz until Tish'a BeAv. The Bach says that he cannot eat meat or drink wine even on Shabbat. Magen Avraham rejects this, noting that he presumably meant to vow in keeping with the minhag, and the minhag was not inclusive of Shabbat, and therefore neither is this one who made the explicit vow. As if I have any say in the matter, I favor the Magen Avraham's position as more correct.

This was said in terms of temporal factors -- whether Shabbat is included -- and for one who explicitly made a vow. But the same should certainly apply to those who do not explicitly take the vow but just keep the custom. And (this is my extension) the same should apply not just to temporal factors such as Shabbat but to material factors as well.

That is, one who keeps the custom not to eat meat or drink wine -- or even one who explicitly makes this vow -- has the erev Tisha BeAv, seuda hamafsekes practice in mind. He is effectively adopting that which is prohibited during that time period, to another time period, for the same reasons -- excessive joy, etc. Since this was what they had in mind, the regular domain of meat and wine as defined by a regular vow not to eat meat and wine should not apply. Rather, meat and wine as defined by the gemara, or by seuda hamafsekes practice.

In which case we could say that the meat by that seuda which is prohibited because of a prohibition of meat (as opposed to a later prohibition because of regularity) does not include salted meat.

Regardless, that is not the halacha as brought down in Shulchan Aruch (before getting to certain commentaries). Rather, chicken and salted meat are included, for they fall under the definition of meat for vows, while tavshil shel basar (a potato from the chulent) does not -- and by extension, rotev shel basar (gravy) and taarovet shel basar (an admixture which contains meat) do not, and are permitted.

At this point, we have the halacha as encoded in the Shulchan Aruch, extended materially and temporally over the halacha in the gemara. But the path towards the final halacha is not yet over. We still have to forbid the tavshil shel basar, the potato in the chulent.

Tavshil shel basar is an interesting halachic category. It arises in gemara Chullin, in the context of waiting 6 hours. The gemara establishes that after eating meat, one needs to wait from one seuda to the next. Yet on the next side of the daf, in a discussion of mayim emtzaim, which is a hand-washing between courses, we are told that this practice is reshut, optional. However, an Amora points out, this is only between one tavshil and another tavshil, but between a tavshil and cheese, it is required. This is problematic to, among others, Tosafot, because if this is a tavshil which contains meat, then mere hand-washing should be insufficient. We should require an end to this meal and a beginning of another (which might mean 6 hours, etc.). The answer is that tavshil shel basar actually means not chulent including the meat, but rather food that was cooked with the meat but does not have any actual substance of meat therein. By cooking with the meat, it absorbed the taste {/flavor} of the meat. Taste of meat is not the same as substance within the halachic system, regardless of what our modern Western sensibilities have to say about atoms or particles of meat therein. Thus, according to pure halacha as classically deduced from that gemara (I have my own take on it which I will not get into over here), tavshil shel basar will not make you "fleishig," and of course you can eat milchigs immediately thereafter, though you should first wash your hands.

Of course, here too, the passage of time has added layers of restrictions. At some point, some people disregarded the halacha derived from the gemara and waited six hours after tavshil shel basar. This then became the custom, the minhag. And minhag is binding. And thus Rema paskens that one cannot, and to cite Kohelet 10:8:
ח חֹפֵר גּוּמָּץ, בּוֹ יִפּוֹל; וּפֹרֵץ גָּדֵר, יִשְּׁכֶנּוּ נָחָשׁ. 8 He that diggeth a pit shall fall into it; and whoso breaketh through a fence, a serpent shall bite him.

(I wonder, though, if there is room to argue that this is not a geder but rather a minhag ta'us lechumra, based on misunderstanding or ignorance of the gemara that then spread to custom, as opposed to a practice set up to be more machmir and to guard the more basic required practice. Regardless, and no matter how much I grimace, this is the accepted halacha nowadays.)

It could be that this regarding of tavshil shel basar as being fleishigs influenced people's approach to it and they thought (mistakenly) that one should not eat tavshil shel basar either during the 9 days. Or perhaps, since it does have meat flavor, it should be ruled as meat and it is inappropriate to eat this during the 9 days. Regardless, it became the custom, and so reports the Magen Avraham. (Taz, meanwhile maintains that tavshil shel basar and rotev is permitted.) So later authorities do indeed encode it as such and so the Aruch haShulchan (citing the Magen Avraham), for example, says that we cannot eat tavshil shel basar because of the minhag.

From the perspective of halachic logic of the prohibition, it does not really make sense. After all, a steak is joy, but salted meat and a potato from the chulent is not. And the extension to salted meat does not even translate to tavshil shel basar, since this is not on the level of something they were ragil to eat as a great meat dish. And if we take the approach of vows, we have already established that tavshil shel basar is not counted as meat for this purpose, just as chometz shel yayin is not the same as yayin (and is indeed still permitted). (But see in a moment how the definition in terms of neder might change.)

However, the custom does not need to make halachic sense. It only needs to develop as a minhag and then becomes binding, and so we are stuck. But more than than, the Magen Avraham gives reasons for prohibiting. The Bet Yosef and Darchei Moshe both wrote to prohibit (though not in Shulchan Aruch itself), and also, since the custom developed, it is now within the definition of basar. Therefore, even by nedarim nowadays, if someone forswore meat, he would be prohibited in tavshil shel basar, for vows follow minhag in terms of their definition. And so too here, this becomes the definition of the vow in terms of the 9 days as well.

Presumably rotev shel basar, gravy, is included in this prohibition. If water that has absorbed meat juice, then it has taam basar. If we look at it as melted fats and the like, even though this is not a steak, we would expect it to be treated as meat, following the same pattern and logic. (The Magen Avraham says that shamnunit would have the same status as meat and be prohibited, even without all this.)

What about taarovet shel basar, some food that is an admixture of meat and other material? By all logic, this should certainly be forbidden. After all, if mere taam, flavor, of meat will prohibit it for the 9 days, then certainly actual substance of meat should cause it to be prohibited.

Yet, the Aruch haShulchan in discussing the prohibition of meat and wine says that an admixture of wine with some other substance, or of meat with another substance, will not cause it to be prohibited, because the vow is against meat (/wine), and this is not included. This, he states, is even if its taste is discernible. A few seifim later he prohibits tavshil shel basar for the aforementioned reason, that of binding minhag even though the reason to permit is indeed reasonable. But he does not mention taarovet, and the impression one gets is that it is a different law entirely. (I admit I could be reading it wrong, but I don't think I am.)

That is, in Orach Chaim 551, he writes:

סעיף כג

מדינא דגמרא אין איסור באכילת בשר, רק בערב תשעה באב, ובסעודה המפסקת. אבל כבר קבלו אבותינו זה הרבה מאות בשנים: שלא לאכול בשר, ושלא לשתות יין, מן ראש חודש אב עד אחר תשעה באב, לבד מיום השבת, לזכר הקרבינות והנסכים שנתבטלו בעונותינו. ויש שנהגו מן שבעה עשר בתמוז, שבו בוטל התמיד. ויש שכתבו רק בשבוע שחל תשעה באב, אבל עתה בכל ארצות פזורינו – נוהגים מן ראש חודש.

ועתה בעוונותינו הרבים – כמה שמזלזלים באיסור זה! ולבד שהן עוברים איסור דאורייתא מטעם נדר, דכיון שאבותינו קבלו עליהם מנהג זה – הוי נדר של כלל ישראל. ולבד זה, איך לא נבוש ולא נכלם? הלא הרבה מהאומות שאין אוכלים הרבה שבועות לא בשר, ולא חלב, ולא ביצים; ואנחנו עם בני ישראל, שעלינו נאמר "קדושים תהיו" – לא יאבו לעצור את עצמם שמונה ימים בשנה, לזכרון בית קדשינו ותפארתינו? ועל כיוצא בזה אמר הנביא (יחזקאל לו לב): "בושו והכלמו מדרכיכם בית ישראל", ועונשם גדול מאד.

That is the setup. Then he writes, in seif 24:

ושארי משקים מותר, ואפילו חומץ של יין. והאיסור הוא בין בשר בהמה ובין בשר עוף. רק מי שהוא חלוש – יכול לאכול בשר עוף אם צריך לזה. ויש מי שמתיר ברוטב של בשר, ואין המנהג כן. ואפילו בשר שהיה אצלינו מקודם ראש חודש – אסור לאכול, ואפילו הנשאר משבת.

ולא דמי למה שכתב הרא"ש בפרק קמא דחולין, גבי איברי בשר נחירה שהכניסו ישראל לארץ, דבעיא להו אם מותרין או אסורין; וכתב הרא"ש דנפקא מינה לנודר מדבר, ויש לו מהדבר מקודם הנדר, עיין שם, דזהו בנדר חדש ולא בנדר שמדור דור, והוי כאיסור ישן.

ולעניין תערובות בשר בשאר דבר, נראה דלא הלכו בזה אחר נתינת טעם, דלא גזרו בכי האי גוונא. ועוד, דהנודר מיין – מותר בתבשיל שיש בו טעם יין, כמו שכתוב ביורה דעה סימן רטז, עיין שם. ואפילו מה שהיה יין באלו הימים, ונהפך לחומץ – גם כן מותר (ט"ז סעיף קטן ט).

ומי שנדר שלא לאכול בשר משבעה עשר בתמוז – מותר לאכול בשבתות, דכל הנודר – אדעתא דמנהגא נודר (מגן אברהם סעיף קטן כז). ויש חולקין, ומצריכין התרה (שם בשם ב"ח). מיהו אם לא אמר בלשון נדר, רק בלשון קבלה – וודאי מותר (שם

Thus, he explicitly allows taarovet shel basar, even if it gives taam to something else. But then later, he writes, in seif 26:

כתבו רבותינו בעלי השולחן ערוך בסעיף י: יש מי שאומר שהנוהג שלא לאכול בשר בימים הנזכרים – מותרים בתבשיל שנתבשל בו בשר, ואסורים בבשר מלוח, ובשר עוף, ויין תוסס. ומותר לשתות יין הבדלה, וברכת המזון. ונוהגין להחמיר שלא לשתות יין, לא בברכת המזון ולא בהבדלה, אלא נותנים לתינוק. ובמקום דליכא תינוק – מותר בעצמו לשתות ההבדלה; עד כאן לשונו.

ואנחנו נוהגים לאסור בתבשיל שנתבשל בו בשר (מגן אברהם סעיף קטן כט), וכן המנהג הפשוט, ואין לשנות.

Is he reversing himself here, when saying to follow the Magen Avraham? Rather, he seems to distinguish between tavshil shel basar, which is prohibited, and taarovet shel basar, which is permitted.

Could this really be so? Could we say that actual substance, though not visible, in a mixture will be permitted during the 9 days, but something that merely has flavor will be forbidden? Even though according to the initial Talmudic halacha, one will make you fleishigs and the the other will not? We can, because development of minhag is historical rather than logical. I can certainly advance a psychological reason for it. With a taarovet, we never see the meat in the cooked dish, and it has a different name and thus status. Meanwhile, in chulent or chicken soup, you actually see a piece of meat, be'ein, and so the dish takes on the status of meat it the viewer's mind. And so even the potato has the status of the meat.

Of course, minhagim can change, though the only apparently permissible direction is towards prohibition, so I would not be surprised, if taarovet is permitted, if eventually or even now it will be forbidden.

Luckily, things cooked in a fleishigs pot, which does not contain meat (even if it is ben yomo, as far I as understand), is still not prohibited.

Chulent and Kugel on Erev Shabbos
Last week, I saw something in the My Machberes column in the Jewish Press:
This past Friday, all take‑home food stores were open and busy. Many homemakers work full-time, have large families and even larger extended families, with grandparents, grandchildren, and cousins, entertain many guests, etc., and the convenience offered by take‑home food, is an absolute necessity. The stores are crowded and long lines form, waiting to be served.

In keeping with the custom of many great Chassidishe Rebbes, who tasted the food prepared for Shabbos on Friday afternoon, some husbands order a plate of cholent, kugel and kishka warmed up, to be eaten on the spot. Many of the take‑out stores have tables and chairs, restaurant‑like, and on Friday afternoons every chair is taken, many waiting their turn to “taste” the Shabbos foods at a table, while others eat standing up. However, On Friday Erev Shabbos Chazon, the lines overflow as usual, but every chair is empty.
It is really to "keep with the custom of many great Chassidishe Rebbes," or is such an excuse to fress on erev Shabbos when the food is hot and newly prepared? Let us assume this is because of the minhag. It is then a great thing that while everyone was buying food for Shabbos, of course no one would sit and eat in the store. (Presumably no one had the custom of shavua shechal bo rather than all 9 Days, or else felt uncomfortable flaunting this in public.) Here is, then, another example of minhag clashing against minhag. If the minhag not to eat meat gives way in the face of Shabbos, then why should it not give way in the face of the associated to Shabbos custom of tasting the food? This is also a "mitzvah." It doesn't, of course.

However, I would point out this sentence:
[S]ome husbands order a plate of cholent, kugel and kishka warmed up, to be eaten on the spot.
So we know they cannot eat the meat of the cholent, because it is meat. And they cannot eat the potatoes of the cholent, because it is tavshil shel basar. But the kugel and kishka? Why not? Perhaps in some cases, it is at most taarovet shel basar, but it probably is not even that in many cases. I guess because it has the presumption of being fleishigs. If so, maybe this is a further extension of the prohibition within the minhag. Either that or if they couldn't eat the chulent, they did not feel like sitting down just to eat some kugel, if they couldn't get their chulent as well, and never mind "the custom of many great Chassidishe Rebbes."

The Nine Days And Lent
One final, interesting point. The Aruch HaShulchan decried those who were mezalzel in the minhag by not practicing it, and compares this Jewish practice to Lent! He writes:

מדינא דגמרא אין איסור באכילת בשר, רק בערב תשעה באב, ובסעודה המפסקת. אבל כבר קבלו אבותינו זה הרבה מאות בשנים: שלא לאכול בשר, ושלא לשתות יין, מן ראש חודש אב עד אחר תשעה באב, לבד מיום השבת, לזכר הקרבינות והנסכים שנתבטלו בעונותינו. ויש שנהגו מן שבעה עשר בתמוז, שבו בוטל התמיד. ויש שכתבו רק בשבוע שחל תשעה באב, אבל עתה בכל ארצות פזורינו – נוהגים מן ראש חודש.

ועתה בעוונותינו הרבים – כמה שמזלזלים באיסור זה! ולבד שהן עוברים איסור דאורייתא מטעם נדר, דכיון שאבותינו קבלו עליהם מנהג זה – הוי נדר של כלל ישראל. ולבד זה, איך לא נבוש ולא נכלם? הלא הרבה מהאומות שאין אוכלים הרבה שבועות לא בשר, ולא חלב, ולא ביצים; ואנחנו עם בני ישראל, שעלינו נאמר "קדושים תהיו" – לא יאבו לעצור את עצמם שמונה ימים בשנה, לזכרון בית קדשינו ותפארתינו? ועל כיוצא בזה אמר הנביא (יחזקאל לו לב): "בושו והכלמו מדרכיכם בית ישראל", ועונשם גדול מאד

Thus, he admits that the actual practice mandated by the gemara is only on erev Tisha beAv during the seuda hamafsekes. (He does not add, only after 6 hours in the day.) Yet people have adopted all sorts of temporal extensions. Yet, in our great sins, many don't treat this prohibition properly. Yet it is Biblical, for it has the status of neder. And furthermore, look at the gentiles! Are we not embarrassed? They have Lent, and for many weeks (40 days) they do not eat meat, milk, or fish.

(To interject {says Josh} -- I would note that the Christian practice varied over time as well, permitted and prohibiting different foods. Furthermore, interestingly, it seems that Christian practice also extended this period of time. To cite Wikipedia:
The Lenten period of forty days owes its origin to the Latin word quadragesima, referring to the forty hours of total fast that preceded the Easter celebration in the early Church.[3] The main ceremony was the baptism of the initiates on Easter Eve. The fast was in preparation to receive this sacrament. Later, the period from Good Friday until Easter Day was extended to six days, to correspond with the six weeks of training, necessary to instruct the converts who were to be baptized.
It seems to have gone from 40 hours to six days to forty days.)

Anyway, the Aruch haShulchan continues: They refrain from consuming meat, milk, and eggs, and we, upon whom was stated "Thou shalt be holy" do not desire to hold ourselves back eight days of the year, as a remembrance for our holy house and glory? And upon things like this the Navi said, "Be embarrassed and ashamed, from their ways, house of Israel." And their punishment is great indeed.

So ends the Aruch haShulchan.

I wonder at this, though. Firstly, the trend and general disposition of the gemara was to minimize the trend towards asceticism, as we saw in the past post with Rabbi Yehoshua ben Chanania who challenged the ascetics, and as we saw from the fact that Rav minimizes it from erev Tisha BeAv to only seuda hamafsekes, and only during the six hours. And the gemara takes pains to say that it is the intersection rather than union of these two times, so as to further reduce the asceticism. And then it reduces it materially. True, custom varied and new things were progressively added, as the drift and feature bloat always occurs. But I am not sure countering this trend is a bad thing. And we need not be as ascetic as certain Christian sects are. Our Judaism can be self-confident and self-assured, not looking at what the others are doing.

Further, while it is true that minhag mitaam neder, and we often treat it in this regard (this case is a great example of this, as we use definitions of meat and wine from neder), I wonder how far this extends. Just to throw out an example, while Shacharit and Mincha are Rabbinically required, Maariv is a reshut. But it is not a reshut, writes e.g. the Rif, once you do it a few times. Or because all Israel accepted it. It has the status of neder. If this is so, what is worse to miss, Shacharit or Maariv? Would we really say that someone who neglects to daven Maariv is violating an issur deOrayta? Perhaps. (Maybe there are other reasons why not.) But it seems like it may be more polemical that straight halachic. I don't have the sources to back me up in this, though.

Further, the Shulchan Aruch recorded various customs in this regard, with different lengths of time. And his statement from
Kohelet 10:8:
ח חֹפֵר גּוּמָּץ, בּוֹ יִפּוֹל; וּפֹרֵץ גָּדֵר, יִשְּׁכֶנּוּ נָחָשׁ. 8 He that diggeth a pit shall fall into it; and whoso breaketh through a fence, a serpent shall bite him.
was specifically to someone who didn't in a place where they were noheg to do so.

I wonder, then, in a place where many are mezalzel (as Aruch haShulchan writes), if this is then showing that this is not the accepted custom by everyone. And if so, perhaps it does not have the status of neder of all of Israel, such that one violates a Biblical prohibition by ignoring it.

Even if that particular generation does violate in this regard, I wonder about the next generation. After all, all of this is minhag, and where minhag changes, it has changed, and that is definitional of the binding practice.

Please note: Please don't take any of this as a recommendation of how to act, either lekulah or lechumra. Consult your local Orthodox rabbi, and also learn through the sources yourself. And positions I take here need not, indeed do not, reflect my actual practice. Also, don't think I am saying this because I am bitter at not being able to fress cold-cuts, or left-over chulent, during the 9 days. Rather, this is one example among many of a greater trend and drift, that continues to this day, in many different places in halacha. And, I am not done researching this area yet, and may feel the need to revise.

No Greaters Days For Israel Than Tu BeAv and Yom Kippur

So Tu BeAv is a great day for Israel, and for shidduchim. To cite Taanit 26b:
{Taanit 26b}
אמר רבן שמעון בן גמליאל לא היו ימים טובים לישראל כחמשה עשר באב וכיום הכפורים שבהם בנות ישראל יוצאות בכלי לבן שאולין שלא לבייש את מי שאין לו וכל הכלים טעונין טבילה ובנות ישראל יוצאות וחולות בכרמים ומה היו אומרות בחור שא עיניך וראה מה אתה בורר לך אל תתן עיניך בנוי תן עיניך במשפחה:
Rabban Shimon ben Gamliel said: There were not festivals for Israel comparable to the 15th of Av and Yom Kippur, that on these days the Jewish maidens would go out with borrowed white garments, so as not to embarrass she who has none. And all this clothing had to be previously immersed. And the Jewish maidens would go out and dance in the vineyards, and what did they say? "Young man, lift up your eyes and see what you choose for yourself. Do not cast your eyes on beauty but rather cast your eyes on family."
After the war sparked by the incident with the concubine of Gibeah, the remaining men of Banjamin could not marry, because of an oath everyone else took not to give a daughter to marry them. After the war, they did not want an entire tribe of Binyamin to die out, so they sought creative halachic solutions. First, they gave them the daughters of Yavesh Gilead, who had not partaken in the oath. Then, in the second half of Shoftim 21:
טז וַיֹּאמְרוּ זִקְנֵי הָעֵדָה, מַה-נַּעֲשֶׂה לַנּוֹתָרִים לְנָשִׁים: כִּי-נִשְׁמְדָה מִבִּנְיָמִן, אִשָּׁה. 16 Then the elders of the congregation said: 'How shall we do for wives for them that remain, seeing the women are destroyed out of Benjamin?'
יז וַיֹּאמְרוּ, יְרֻשַּׁת פְּלֵיטָה לְבִנְיָמִן; וְלֹא-יִמָּחֶה שֵׁבֶט, מִיִּשְׂרָאֵל. 17 And they said: 'They that are escaped must be as an inheritance for Benjamin, that a tribe be not blotted out from Israel.
יח וַאֲנַחְנוּ, לֹא נוּכַל לָתֵת-לָהֶם נָשִׁים--מִבְּנוֹתֵינוּ: כִּי-נִשְׁבְּעוּ בְנֵי-יִשְׂרָאֵל, לֵאמֹר, אָרוּר, נֹתֵן אִשָּׁה לְבִנְיָמִן. {ס} 18 Howbeit we may not give them wives of our daughters.' For the children of Israel had sworn, saying: 'Cursed be he that giveth a wife to Benjamin.' {S}
יט וַיֹּאמְרוּ הִנֵּה חַג-יְהוָה בְּשִׁלוֹ מִיָּמִים יָמִימָה, אֲשֶׁר מִצְּפוֹנָה לְבֵית-אֵל מִזְרְחָה הַשֶּׁמֶשׁ, לִמְסִלָּה, הָעֹלָה מִבֵּית-אֵל שְׁכֶמָה--וּמִנֶּגֶב, לִלְבוֹנָה. 19 And they said: 'Behold, there is the feast of the LORD from year to year in Shiloh, which is on the north of Beth-el, on the east side of the highway that goeth up from Beth-el to Shechem, and on the south of Lebonah.'
כ ויצו (וַיְצַוּוּ), אֶת-בְּנֵי בִנְיָמִן לֵאמֹר: לְכוּ, וַאֲרַבְתֶּם בַּכְּרָמִים. 20 And they commanded the children of Benjamin, saying: 'Go and lie in wait in the vineyards;
כא וּרְאִיתֶם, וְהִנֵּה אִם-יֵצְאוּ בְנוֹת-שִׁילוֹ לָחוּל בַּמְּחֹלוֹת, וִיצָאתֶם מִן-הַכְּרָמִים, וַחֲטַפְתֶּם לָכֶם אִישׁ אִשְׁתּוֹ מִבְּנוֹת שִׁילוֹ; וַהֲלַכְתֶּם, אֶרֶץ בִּנְיָמִן. 21 and see, and, behold, if the daughters of Shiloh come out to dance in the dances, then come ye out of the vineyards, and catch you every man his wife of the daughters of Shiloh, and go to the land of Benjamin.
כב וְהָיָה כִּי-יָבֹאוּ אֲבוֹתָם אוֹ אֲחֵיהֶם לרוב (לָרִיב) אֵלֵינוּ, וְאָמַרְנוּ אֲלֵיהֶם חָנּוּנוּ אוֹתָם--כִּי לֹא לָקַחְנוּ אִישׁ אִשְׁתּוֹ, בַּמִּלְחָמָה: כִּי לֹא אַתֶּם נְתַתֶּם לָהֶם, כָּעֵת תֶּאְשָׁמוּ. {ס} 22 And it shall be, when their fathers or their brethren come to strive with us, that we will say unto them: Grant them graciously unto us; because we took not for each man of them his wife in battle; neither did ye give them unto them, that ye should now be guilty.' {S}
כג וַיַּעֲשׂוּ-כֵן, בְּנֵי בִנְיָמִן, וַיִּשְׂאוּ נָשִׁים לְמִסְפָּרָם, מִן-הַמְּחֹלְלוֹת אֲשֶׁר גָּזָלוּ; וַיֵּלְכוּ, וַיָּשׁוּבוּ אֶל-נַחֲלָתָם, וַיִּבְנוּ אֶת-הֶעָרִים, וַיֵּשְׁבוּ בָּהֶם. 23 And the children of Benjamin did so, and took them wives, according to their number, of them that danced, whom they carried off; and they went and returned unto their inheritance, and built the cities, and dwelt in them.
כד וַיִּתְהַלְּכוּ מִשָּׁם בְּנֵי-יִשְׂרָאֵל בָּעֵת הַהִיא, אִישׁ לְשִׁבְטוֹ וּלְמִשְׁפַּחְתּוֹ; וַיֵּצְאוּ מִשָּׁם, אִישׁ לְנַחֲלָתוֹ. {פ} 24 And the children of Israel departed thence at that time, every man to his tribe and to his family, and they went out from thence every man to his inheritance. {P}
כה בַּיָּמִים הָהֵם, אֵין מֶלֶךְ בְּיִשְׂרָאֵל: אִישׁ הַיָּשָׁר בְּעֵינָיו, יַעֲשֶׂה. {ש} 25 In those days there was no king in Israel; every man did that which was right in his own eyes. {P}
It is quite possible that this last verse, which is also the last verse of the sefer, is passing negative judgment on these particular actions.

This incident has rough parallels with the account of the Rape of the Sabine women by the Romans -- the "rape" in that case connoting "seizing" (rapere, to grab) in order to wed. To cite Wikipedia:
It refers to an event supposed to have occurred in the early history of Rome, shortly after its foundation by Romulus and a group of mostly male followers. Seeking wives in order to found families, the Romans negotiated with the Sabines, who populated the area. The Sabines refused to allow their women to marry the Romans, fearing the emergence of a rival culture. Faced with the extinction of their community, the Romans planned to abduct Sabine women. Romulus invited Sabine families to a festival of Neptune Equester. At the meeting he gave a signal, at which the Romans grabbed the Sabine women and fought off the Sabine men. The indignant abductees were implored by Romulus to accept Roman husbands.
Here too, a seizing at the festival in order to allow an otherwise forbidden marriage.

What was the nature of this Jewish festival, and dancing? Was it really originally done for the purpose of marriage? It would seem not. Rather, festivals were a time of joy, and this was a way of expressing such joy. And it was by Shiloh (think Mishkan Shiloh), and it was a feast to Hashem:
יט וַיֹּאמְרוּ הִנֵּה חַג-ה בְּשִׁלוֹ מִיָּמִים יָמִימָה, אֲשֶׁר מִצְּפוֹנָה לְבֵית-אֵל מִזְרְחָה הַשֶּׁמֶשׁ, לִמְסִלָּה, הָעֹלָה מִבֵּית-אֵל שְׁכֶמָה--וּמִנֶּגֶב, לִלְבוֹנָה. 19 And they said: 'Behold, there is the feast of the LORD from year to year in Shiloh, which is on the north of Beth-el, on the east side of the highway that goeth up from Beth-el to Shechem, and on the south of Lebonah.'
It was presumably the unmarried virgins who went out to dance, which is why it was easy to seize the ones who went out to dance and take them as wives. Thus, perhaps there was some cultic aspect to these dances -- praising God via joy, celebration, and dance, and not just via sacrifice.

We have Tehillim 150:
א הַלְלוּ-יָהּ:
הַלְלוּ-אֵל בְּקָדְשׁוֹ; הַלְלוּהוּ, בִּרְקִיעַ עֻזּוֹ.
1 Hallelujah. {N}
Praise God in His sanctuary; praise Him in the firmament of His power.
ב הַלְלוּהוּ בִגְבוּרֹתָיו; הַלְלוּהוּ, כְּרֹב גֻּדְלוֹ. 2 Praise Him for His mighty acts; praise Him according to His abundant greatness.
ג הַלְלוּהוּ, בְּתֵקַע שׁוֹפָר; הַלְלוּהוּ, בְּנֵבֶל וְכִנּוֹר. 3 Praise Him with the blast of the horn; praise Him with the psaltery and harp.
ד הַלְלוּהוּ, בְּתֹף וּמָחוֹל; הַלְלוּהוּ, בְּמִנִּים וְעֻגָב. 4 Praise Him with the timbrel and dance; praise Him with stringed instruments and the pipe.
ה הַלְלוּהוּ בְצִלְצְלֵי-שָׁמַע; הַלְלוּהוּ, בְּצִלְצְלֵי תְרוּעָה. 5 Praise Him with the loud-sounding cymbals; praise Him with the clanging cymbals.
ו כֹּל הַנְּשָׁמָה, תְּהַלֵּל יָהּ: הַלְלוּ-יָהּ. 6 Let every thing that hath breath praise the LORD. {S} Hallelujah. {P}
Perhaps it developed it connection to matchmaking secondarily, as an outgrowth of the Biblical story.

Presumably, when the women went out to dance at Tu BeAv and Yom Kippur, the men did not just seize them there and that was all. Rather, presumably there was betrothal and a year later nuptials. And also most likely dating and arrangement of the match before that - shidduchin. But this was essentially a big singles event, in which men saw the available women and then sought their hand in marriage later.

Sunday, July 29, 2007

More on the 9 Days, and Meat and Wine

In my previous post I discussed how the original prohibition in the gemara, of not eating meat and drinking wine for the seuda hamafsekes when after chatzos, was extended to other times, such as the shavua shechal bo, the full 9 days, the night after Tisha BeAv, the 10th of Av until chatzos (and according to one minhag all the way from the 17th of Tammuz). I suggested that the reason for the initial prohibition is that meat and wine are signs of joy, along the lines of ain simcha ela bevasar veyayin.

There is another aspect, that of containing some aspect of the Temple ceremony, which is brought down in Bava Batra 60b, but which Rif brings down specifically in this context of the practice of not eating meat after chatzot of erev Tisha BeAv for the seuda hamafseket.

Rif, in Rif Taanit 10b in pages of Rif:
גרסי' בסוף חזקת הבתים
תנו רבנן כשחרב הבית באחרונה נהגו פרושים שבישראל שלא לאכול בשר ושלא לשתות יין
נטפל להן ר' יהושע בן חנניה
אמר להן בני מנין לכם
אמרו לו נאכל בשר שהיו מקריבין ממנו ע"ג המזבח ועכשיו בטל
נשתה יין שהיו מנסכין ממנו על גבי המזבח ועכשיו בטל
אמר להם א"כ לחם לא נאכל שכבר בטלו מנחות
אמרו לו אפשר בפירות
אמר להם פירות לא נאכל שכבר בטלו הבכורים.
אמרו לו אפשר בפירות אחרות
אמר להם מים לא נשתה שכבר בטל ניסוך המים
מיד שתקו
אמר להם בני בואו ואומר לכם שלא להתאבל כל עיקר א"א שכבר נגזרה גזירה להתאבל יתר מדאי א"א שאין גוזרין גזירה על הצבור אא"כ רוב הצבור יכולין לעמוד בה
אלא כך אמרו חכמים סד אדם את ביתו בסיד ומשייר בה דבר מועט

וכמה אמר רב יוסף אמה על אמה
אמר רב חסדא וכנגד הפתח.

We learn at the end of Chezkat haBatim {Bava Batra 60b}
The Sages learnt {in a brayta}: When the Temple was last destroyed, the ascetics in Israel adopted a custom not to eat meat and not to drink wine {ever}.
Rabbi Yehoshua ben Chanania conversed with them.
He said to them: My sons, where do you get this?
They said to him: Shall we eat meat, where they used to sacrifice from it on the altar, and now it is nullified?! Shall we drink wine, which they used to pour libations of it on the altar, and now it is nullified?!
He said to them: If so, we should not eat bread because the meal-offerings were nullified.
They said to him: It is possible to make do with fruit.
He said to them: Fruits we should not eat, for the bikkurim {first fruits} were nullified.
They said to him: It is possible with other fruits.
He said to them: We should not drink water, for the water libation has been already nullified.
Immediately, they were quiet {and had no answer}.
He said to them: My sons, come and I will tell you: Not to mourn whatsoever is not possible, for a decree has already been decreed. To mourn overmuch is not possible, for we do not decree on the community unless the majority {perhaps multitude} of the community is able to handle it. Rather, so said the Sages: One should whitewash his house with lime but leave a little bit {untreated}.

And how much? Rav Yosef said: A cubit by a cubit.
Rav Chisda said: And opposite the door.
Thus, this ascetic practice developed not to consume meat and wine ever, to be perpetually in mourning for the destroyed Temple. This is taking asceticism too far, and creating and imposing too-stringent practices upon the community. And he also argues using a reductio ad absurdum, to which they finally acquiesce. There is place for perpetual mourning and reminder, but that is within the prescribed parameters defined by Chazal.

Despite the given associations with Temple practice, I still think that what happened here is that they took the two practices associated with joy and said that such joy is never allowed, because of the destruction of the Temple. Just like playing music -- aich nashir et shir haShem al admat neichar? And it is poetic to contrast it to the Temple practice which, because of the destruction of the Temple, they could no longer do it.

It is good that Rabbi Yehoshua ben Chanania nipped this ascetic practice in the bud when it first began to take hold, and before the entire community took it upon themselves. Perhaps this should have been (and should be) Rabbinic response throughout the ages as new ascetic expansions took place -- to challenge it at that point, before it flourished into minhag and then binding practice.

More later, about whether you can eat a potato out of the chulent on the 9 days.

Friday, July 27, 2007

New Anti-Verizon Commercial

So I happened to see a sequel anti-Verizon commercial, from one of their competitors (Time Warner, which offers digital phone service). I noticed an interesting change from the first one to the second. In the first one,

at the very end, Sir Charge says, "Who's going to bloody pay for this suit." I guess somebody complained about the curse word (Bloody is British slang, and might well derive from "By Our Lady," a reference to Mary).

Because in the second, it is still there for the purpose of kick, but in modified form:

"Who's going to pay for these bloody Marys?"


BTW, in terms of definitions, it refers to a different Mary. From WordNet:

The noun Bloody Mary has 2 meanings:

Meaning #1: daughter of Henry VIII and Catherine of Aragon who was Queen of England from 1553 to 1558; she was the wife of Philip II of Spain and when she restored Roman Catholicism to England many Protestants were burned at the stake as heretics (1516-1558)
Synonyms: Mary I, Mary Tudor

Meaning #2: a cocktail made with vodka and spicy tomato juice
Though -- this is cute -- "Make it without liquor, and you have a Virgin Mary, also called a Contrary Mary."

Daf Yomi Yevamot 104b-105b: Witnesses vs. Judges

I offer here a possible alternative interpretation of the Mishna which appears on Yevamot 104b than the one advanced in the gemara.

It is quite possible that I am wrong, but I boldly advance the following in the interests of increasing talmud torah:

Citing from my translation on my Rif blog:
{Yevamot 104b}
החרש שנחלץ והחרשת שחלצה והחולצת מן הקטן חליצתה פסולה
קטנה שחלצה תחלוץ משתגדיל ואם לא חלצה חליצתה פסולה
חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה ורבי שמעון ור' יוחנן הסנדלר מכשירין
ומעשה שחלצה בינו לבינה בבית האסורין ובא מעשה לפני ר"ע והכשיר
The {male} deaf-mute who underwent chalitza and the {female} deaf-mute who performed chalitza, and she who received chalitza from a {male} minor, her chalitza is invalid.
A {female} minor who performed chalitza must perform chalitza when she becomes an adult, and if she does not perform chalitza then, her chalitza is invalid.
If she performed chalitza with two, or with three {people present} and it turns out that one of them is a relative or is invalid {as a judge}, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.
And there was an incident in which she performed chalitza with just he and she present, in the prison, and the incident came before Rabbi Akiva and he validated.
And then:
{Yevamot 105b}
חלצה בשנים או בשלשה ונמצא וכו':
אמר רב יוסף בר מניומי אמר רב נחמן אין הלכה כאותו הזוג דאפילו דאיעבד בתרי חליצתה פסולה וכן הלכה:
"If she performed chalitza with two or three and it turned out...":
Rav Yosef bar Minyumi cited Rav Nachman: The halacha is not like that pair, for even if after the fact, with two {judges} her chalitza is invalid.
And so is the halacha.
This is a good summary of this gemara:
IF [A SISTER-IN-LAW] PERFORMED HALIZAH IN THE PRESENCE OF TWO etc. R. Joseph b. Manyumi stated in the name of R. Nahman: The halachah is not in agreement with this pair. But, surely. R. Nahman had once stated this; for R. Joseph b. Manyumi stated in the name of R. Nahman: The halachah is that halizah [must be performed] in the presence of three [judges]! — [Both are] required: For if the first only had been stated, it might have been assumed [that three judges are required] ab initio only. but that ex post facto even two [judges are enough] hence we were taught that 'the halachah is not in agreement with this pair'. And if we had been taught that 'the halachah is not in agreement with this pair' but in accordance with the ruling of the first Tanna, it might have been assumed [that this applies only] ex post facto, but that ab initio five [judges] are required, [hence the former statement was also] required.
Soncino's take on this is that what we are referring to here are judges, and this is indeed based on the fact that the setama digemara states that
it might have been assumed [that this applies only] ex post facto, but that ab initio five [judges] are required
And we know earlier of Rabbi Yehuda's statement that five judges are required, with the disputants holding three. And indeed, we rule earlier in the gemara that only three are required, but we do five merely to publicize it.

But we already had this from another Mishna, and another gemara! I'll answer this in a bit.

Another issue is how to parse the Mishna. There are two ways to parse it:
חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה ורבי שמעון ור' יוחנן הסנדלר מכשירין
ומעשה שחלצה בינו לבינה בבית האסורין ובא מעשה לפני ר"ע והכשיר
We can either say
If she performed chalitza with two, or with three {people present} and it turns out that one of them is a relative or is invalid {as a judge}, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.
In which case she either started with two judges and then nothing happened, or else she started with three and something happened, namely that one of the three judges was found to be a relative or otherwise invalid.

This is the way Rashi, and the gemara, takes the Mishna.

The alternative reading of the Mishna is as follows:
If she performed chalitza with two or three {people present} and it turns out that one of them is a relative or is invalid, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.
In this reading, she starts with either two or three, and then one of them is found to be invalid, such that she has one or two.

But since when is one judge acceptable for this? In fact, we have read earlier of a Tanna, and an Amora, who orchestrated a chalitza as lone judges. So this is certainly readable as such.

However, there is a further way to read this -- that we are dealing here not with judges but with witnesses. As the pasuk in Devarim 17:5 reads:
ו עַל-פִּי שְׁנַיִם עֵדִים, אוֹ שְׁלֹשָׁה עֵדִים--יוּמַת הַמֵּת: לֹא יוּמַת, עַל-פִּי עֵד אֶחָד. 6 At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.
What is the need for three once we have two? The answer is that three are also called a set, and if you invalidate one of the three witnesses, you end up invalidating all of them.

And why would you expect three judges? Well, even though five judges are best, only three of them sign on the get chalitza, the document certifying that the chalitza happened.

I believe it quite possible that this is why the case in our Mishna was חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה. That is, if there was a set of two and one was invalidated, such that you do not have a valid set of witnesses, or even if there was a set of three and one was invalidated, such that you also don't have a valid set of witnesses, since the set is broken -- if so, the chalitza is invalid.

And this is Rabbi Akiva coming afterwards to back them up that bedieved, witnesses are not required. And this is why it is not in the same location as the other dispute about whether three or five, or one judge is required.

This reading has so much to recommend itself to me that I prefer it to the assumption that it is talking about judges. But I could be wrong.

We might (or might not) have to develop a reason for Rav Yosef bar Minyumi's two statements, but that seems eminently possible. For example, one statement is that if a witness set breaks up, it is invalid, and the second is that you need three rather than two witnesses.

What pushes it towards judges rather than witnesses? Well, Rabbi Akiva's case, according to a named Amora, happened with witnesses. To cite the gemara:
T ONCE HAPPENED THAT A MAN SUBMITTED TO HALIZAH etc. PRIVATELY BETWEEN HIMSELF AND HERSELF! How, then, can we know it? — Rab Judah replied in the name of Samuel: When witnesses observed it from without.
But firstly, this might be Rabbi Akiva's opinion and not that of Rabbi Shimon and Rabbi Yochanan haSandler. And furthermore, if not present actually there, perhaps they are not valid witnesses to validate the chalitza if such is required, even if they can function as witnesses that such an event occurred.

A problem with this comes from various parallel statements in regard to the number required for refusal, with a parallel zug, and from Rabbi Yosef bar Minyumi, on Yevamot 107b. Those would need to be similarly reinterpreted.


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