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Wednesday, October 24, 2007
Monday, October 22, 2007
However, that being said, these are my meager suggestions:
1. Write into the shtar borerin a clause that this Din Torah is subject to review by Beis Din X or Rabbi Y.
2. Network names of unscrupulous borerim. If you find out that the other tzad has chosen one, you might be able to then compel him to appear in front of a local Beis Din.
3. Not easy, but if you can, when you take a job or enter a contract, specify that all disputes will be adjudicated by Beis Din Z.
Any other ideas?
Friday, October 12, 2007
Dear Reb ..., shlita,
...It is simply one of "rabbinic malpractice," as the intention of the other "dayanim" to render a binding psak on the basis of a rationale that (to paraphrase): "Well, we don't know the halacha and we don't have to determine it ourselves (after all we can't find precedent!), the claimant has to prove it to us. Since he hasn't proved it, he loses." This is clearly not a din, nor karov l'din, but a miscarriage of justice. I cannot be a party to any further proceedings. I hope you will find a Beis Din that will redress this avlah. I am cc'ing the other individuals who sat in this "Beis Din."
My current positions on the psakim that should be rendered in this case are as follows, taking into account that no final disposition is implied:
... [In two other matters under consideration I wrote that in my view the halacha was (more or less) in accordance with the position taken by the nit'anim.]
3. Re severance pay: Rabbi ... is entitled to severance pay in full.
See Piskei Din Yerushalayim vol. 7 pp. 38-40 (it is in the Bar Ilan database, so I can send you a copy if necessary), that once the minhag of severance is established (as it is for mechanchim in ..., as we clarified with both the ... and Rabbi ...), its geder is that of a retirement savings account - i.e., the chodesh l'shanah eina mishtalemes elah l'ba'sof - it is only payable at termination, in one lump sum. This was reaffirmed in PDY vol. 9 p. 248. In the latter psak din
a cross-reference notes that there are certain conditions under which severance is forfeited. (See ibid., p. 293, concerning a case in which some Rabbeim in a yeshiva opened a rival yeshiva, in which case their severance is forfeited; see also ibid. vol. 8 p. 183 that when an employee quits a position of his own volition he thereby forfeits his severance).
Thus, severance is the equivalent of a thirteenth month's salary per year - with two caveats:
1. It is only paid upon termination of employment.
2. It is only paid in the absence of one of the conditions that renders it forfeit.
Thus, as is the case with back pay, the severance is a chov on the employer. Hence, the fact that the employer has chosen to shut down the function of its corporate entity that employed an employee is in no way an exemption from severance, just as it is no way an exemption from back pay. The employer must use its assets to cover this debt as it would any other debt.
The other "dayanim" claim that teshuvos issued in Eretz Yisroel are not binding, because the dina d'malchusathere is different. Of course, these psakim have nothing to do with dina d'malchusa. These same "dayanim" want to have it both ways as, claiming that Yeshivas ... is closed, despite the fact that according to dina d'malchusa the corporate entity is alive and functioning, with operations and employees.
In a telephone conversation, Rabbi ... [an outside authority] stressed to me that he never meant to say that the minhag was to not pay severance when a yeshiva is dissolved (which, in my opinion, has not occurred in our case in any event - as Yeshivas ... still functions, albeit as a Shul and Beis Medrash, and has at least one employee on its payroll). Rather, he said, he does not know what is customary in such circumstances.
He also stressed to me that the minhag of severance as established in regard to mechanchim emerged as a result of the hardship that mechanchim endure throughout their years of chinuch - i.e., since they are underpaid and overworked, the workplace has granted them this additional compensation.
Thus, obligation remains a lien outstanding on their remaining assets. [This halachic perspective on the parameters of severance was explained to me by one of the foremost experts in Halacha and Business Law in the United States, specifically in regard to the minhag of severance as practiced here.]
See Acting More Generously than the Law Requires: The Issue of Employee Layoffs in halakhah by Harry J. Van Buren III in Journal of Business Ethics 19, pp. 335-343 (1999) - upon request I can provide the essay in pdf or hard copy. While he is certainly not a posek, Mr. Van Buren demonstrates from several legitimate halachic sources that an industrial plant that has closed must pay severance to its laid-off employees.
I am indebted to two friends and colleagues, one in Monsey, NY and the other in Elizabeth, NJ, with whom I discussed these issues and who advised me and assisted me, both in sevara and in practice.
Al ha'tzedadim l'hitztayed im kol hochochusaihem u'mismochosaihem v'eideihem kdei she'Beis HaDin lo yitztareich l'diyunim nosafim.
Sounds innocent enough? We ask for the BD's convenience that everyone bring all matter of evidence that they know of the first time around so we don't have to reconvene, right?
What it means is that unless the Beis Din decides for some overriding reason to admit it later on, any evidence, including Halachic reasoning, presented after the Beis Din's one and only sitting, was inadmissible.
I'm not sure I can describe the impact this approach has on a case.
The "dayan" of the nit'anim understood and implemented it thus:
This was a case of ha'motzi mei'chaveiro alav ha'ra'ayah. The to'ein had several claims, but let us focus on the major one. The to'ein had been a Rebbe for many years in a yeshiva. Several years ago, the yeshiva decided to "close", and terminated several Rabbeim. However, it still exists as a corporate entity with assets, retains (at least one) former Rebbe as an employee, and functions as a Shul and Beis Medrash. If you call the institution's phone number, you will still be answered: "Yeshivas X." The to'ein asked for the customary chodesh l'shanah severance that is paid upon termination. [Rabbi Michael Broyde from Atlanta has a frequently cited essay demonstrating that the minhag in the American chinuch system is to pay severance of chodesh l'shanah, and Torah U'Mesorah guidelines for its schools incorporate this standard.] Without getting into details, the yeshiva refused, on two grounds:
1. It had not itself established a minhag to pay severance.
2. It had not terminated the Rebbe, but had closed, and was therefore not required to pay severance.
In a future post I will lay out my position on a psak in this matter, and my reasoning, but the "dayan" of the nit'anim took a very simple and straightforward position:
This is a case of ha'motzi mei'chaveiro alav ha'ra'ayah. Unless the to'ein produces at the Din Torah itself (as per the clause above) verified and documented precedents of severance being paid in the makom in which this yeshiva is located and verified and documented precedents (again, at the Din Torah itself) of severance being paid in a case in which a yeshiva closed, he loses. Period. No further research or reasoning necessary.
In short, the burden of birur ha'emes and paskening is lifted from the shoulders of the "dayanim" and placed upon the to'ein. Any concession on the part of the "dayanim" to engage in independent research and analysis is purely their own condescenion, not a requirement of due diligence.
I also fixed up the homepage for these discussions, so they are now accessible directly from that page (not just from this blog):
Wednesday, October 10, 2007
שו"ת אגרות משה חלק חו"מ ב' סימן ג
הנה ברור ופשוט שכל בע"ד יכול לומר שרוצה דוקא בזבל"א, וכמפורש בתוס' ורא"ש סנהדרין דף ה' ע"א דהא דמומחה לרבים תניא שדן אפילו יחידי שפירושו אפילו בעל כרחו וכמו כן למדו משם דסתם דיינים שדנין בשלשה הוא נמי שיכולין לדון אפילו בעל כרחם דהוא דוקא כשאינו רוצה לבא לב"ד כלל, אבל כשרוצה לבא לב"ד אבל רוצה בזבל"א =בזה בורר לו אחד= אין יכולין לכופו שילך לב"ד בלא זבל"א אף שהוא מומחה, ומסתבר דהוא אף לפני שלשה מומחין אין יכולין לכופו לדונו בעל כרחו דהא לרש"י מומחה לרבים שדן יחידי הוא למ"ד דא"צ שלשה מקרא דבצדק תשפוט וגם עליו כתבו התוס' שאינו יכול לדון בע"כ אלא כשלא רצה כלל לילך לב"ד אף שלדידיה הוי מומחה אחד כמו שלשה מומחין, ודוחק לומר שבתוס' שמשמע שאף במומחה אינו יכול לכופו אלא כשאינו רוצה לבא כלל לפני ב"ד הוא רק לשיטתייהו שיחיד מומחה שתניא שדן הוא רק מתקנתא דרבנן דלכן לא תיקנו אלא בכה"ג שאין רוצה כלל לילך לב"ד דהי"ל לפרושי זה. וגם הרא"ש הא מפרש הברייתא לתרוייהו למאן דלית ליה עירוב פרשיות הוא מדאורייתא ולמאן דאית ליה עירוב פרשיות הוא מדרבנן ולא הזכיר שיהיה חלוק בינייהו לענין בע"כ אף כשרוצה לילך לב"ד דזבל"א אלמא דליכא חלוק ביניהם לדינא דלתרוייהו הוא מה שמסיק דכשרוצה בזבל"א אין יכולין לכופו וא"כ גם תלתא מומחין אין יכולין לכופו אלא כשאינו רוצה לילך לב"ד כלל. אבל לדינא אינו נוגע זה דבזמננו ליכא דין מומחה שלכן לא שייך לדון כלל בזה כי כן איפסק גם בש"ע /חו"מ/ סימן ג' סעי' א'. ומשמע שליכא בזה חולק. ורק במומחה פליג הטור /חו"מ/ בסימן י"ג שהוא נגד אביו הרא"ש וכמעט כל הראשונים ועיי"ש בב"ח וצ"ע אבל בזמננו שליכא מומחה לכו"ע יכול לומר שרוצה לפני ב"ד דזבל"א.
והא דכתב הרמ"א דאם דיינים קבועים בעיר לא יכול לומר לא אדון לפניהם אלא בזה בורר היה זה רק בעיירות שבמדינותינו שהיו מתמנים מהעיר שאף הרב האב"ד לבדו נמי היה יכול לכופו מאחר שקבלוהו אבל בנוא יארק ליכא דיינים קבועים שנתמנו מהעיר ובפרט שאיכא עוד אגודות וחבורות של רבנים שליכא אף מינוי מכל הרבנים שבעיר ולכן כשרוצה אחד מהן בזבל"א מוכרחין לילך בזבל"א דוקא.
ידידו, משה פיינשטיין.
Tuesday, October 09, 2007
1) Explain the Gra's explanation of why the Mishna says
"korin" and use it to explain the machlokes between Rashi and Tosfos
over whether Shma is "korin" or "mispalilin". Then use this
machlokes to explain the Tosfos of "Lesnei Dishacharis."
1) The Gra says that the Mishna uses the word
"korin" instead of "koreh" to show that everyone has to say
Shma. You cannot be motzee someone else for the mitzvah of Ahavas Hashem like
you can by other mitzvos like Tekias Shofar. Rashi uses the terminology of
"korin" because he also holds like the Gra that you cannot be
motzee someone else in saying Shma. Tosfos on the other hand uses the term
"mispalilin" because he holds that Shma and Tefila are linked. Just
like by Tefila you can be motzee someone else, so too according to Tosfos
you can be motzee someone else by Shma. Now that you see that Tosfos holds that
Shma and Tefila are linked you can explain he Tosfos of
"Lesnei." Tefila is kineged timidim and the Torah says the tamid
shel shachar first and Shma is linked to tefila so it is a
strong "havah amina" that that the Mishna should talk
about shacharis first before arvis.
2) Explain the Rashash on "Mishaah Shehaani Nichnas
Leechol Pitoh Bimelach" (two times for Krias Shma) and explain
what question he is answering.
2) The Rashash says that when the ani comes home he is hungry but his
meal isn't ready becasue his house is empty. In order to try to alleviate
his hunger he eats some bread and salt. During the time that his wife buys
food and prepares the meal he davens and says Shma. After this he eats his
regular meal. So the Rashash is saying that the earliest time of "Mishaa
Shehaani..." is when he eats the bread and salt until he finishes hi
main meal. The latest time of "Mishaa Shehaani..." is when he
begins his main meal till "Ashmurah Harishonah." The Rashash is
answering Tosfos's question of, if the time of Shma is when the ani eats his
meal then when does the ani daven and say Shma because you can't eat before
3) The gemara
asks, if arvis really comes first, then why by birkas krias shema does shachris
come first. Explain the machlokes rashi tosefos
3) rashi holds
that this questions is based on both pisukim that the gemara quotes,
bishachbicha and vayihi erev. tosafos holds this question only goes on
vayihi erev. the reason for this is because tosafos holds that there is a
link between shema and the tamid, while rashi doesnt. because tosafos has
this connection, the question of the gemara lesnei dishacharis bireaisha is
much weaker, because even though the pisukim seem to prove that erev comes
first, the tamid counteracts that and says shacharis comes first.
therefore, according to tosafos, the gemara q only goes on vayihi erev, which
is a stronger posuk in this aspect than bishachbicha, because vayihi erev goes
on everything, including birkos krias shema, while beshachbicha only goes on
shema, not even on birkos krias shema.
4)Why does the gemara need to bring
an ebais eima? Whats lacking in just writing the pasuk of bshachbcha? What does
vyhe erev add, that wasn’t in beshochbacha?
4) ebais eima teaches us that each
answer has a strength that covers up a whole in the other
answer. Bishachbicha strength is that it answers both questions in
the gemara—Whats the source for krias shema and why erev first. Vayihi
ereves strength is that if we only had bischachbicha, that means the secends
before you go to sleep. Vayihi erev teaches us that shema can be said
whole night, not just seconds before you go to sleep.
5) According to
the raavan, would r' eliezer in our mishna allow one to say krias shema after
plag but before the time that kohanim are allowed to eat terumah never,
sometimes, or always. explain
5) If one planned to
eat or go to sleep anytime after plag, even if it is before tzeis, the raavan
says that r eliezer would require them to say shema. when r eliezer says
the time for krias shema is after tzeis, he is only saying that even if you
dont plan to eat or sleep, by tzeis the time dfor krias shema starts anyway.
if you do plan to eat or leep, the time of krias shema starts then, even before
6) Give two ways in which you can daven
tartei desatrei (mincha and maariv)?
6) Daven them both
either after plag but before shkeiah or after shkeiah but before tzeit kochavim
7) What questions does tosfos have on
rashis pshat on the meaning of bias oroh/shimshah? And what is tosfos's
7) Tosfos has 2 questions on rashi one is explicitly said in tosfos and one if
implied. The explicit question is
why is our gemara debating on when the cohanim could eat there terumah in our
sugya, wouldn't it be more logical to put it in the ikar sugya of yevamos
(where the topic of cohanim is discussed at length)?
The implicit question is that since it's not discussed in the ikar sugya this
is a ridicullous hava aminah/ kasha and rashi must be wrong.
So tosfos's alternate pishat is that bias oroh is sun sets beneath horizion
bias shimsha: sun is tucked away behind the dome 5 mil away.
and this question is not asked and in yevamos because it's not such a big
question, btwn night and day. everyyone agrees it's at night it is just a small
question (worthy enough to be in our gemara) on what time of night.
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Monday, October 08, 2007
First of all, this Aruch HaShulchan is mind-boggling. I am told that it is not necessarily common practice to write that the Zavla is being held according to the AhS - what did I know? Why did the "dayan" mitzad the nit'anim write that the Zavla was to take place according to the AhS? What do you think?
Sunday, October 07, 2007
raven is a harbinger of bad news. I know this idea exists in goyish
culture in general, but there is a particular secular reference that
immediately came to mind. I thought I would share it with you.
Rohan calls Gandalf "Stormcrow" while under the spell of Grima
You have ever been a herald of woe. Troubles follow you like
crows, and ever the oftener the worse . . . . Here you come again!
And with you come evils worse than before, as might be expected. Why
should I welcome you, Gandalf Stormcrow? Tell me that.
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Wednesday, October 03, 2007
I have a lot to say about this, I just wanted to get the ball rolling for now.