Parashat Shavua

Hemdat Yamim Parashat yitro

Hemdat Yamim Parshat Yitro **************************************************************************** The 4th volume of B'Mareh Habazak, Eretz Hemdah's responsa to Diaspora rabbis, has just been published. Copies are available at our office or can be sent by mail. Call our office for details. **************************************************************************** **************** This edition of Hemdat Yamim is dedicated to the memory of R' Meir ben Yechezkel Shraga Brachfeld o.b.m. **************************************************************************** **************** "Open Your Eyes, Then Shut Them" / Harav Yosef Carmel Our parasha spells out the characteristics of ideal dayanim (rabbinical judges): "men of valor, G-d fearing men, men of truth, those who hate money" (Shemot 18:21). In Sefer Devarim, three more characteristics are mentioned: knowledgeable, wise and known by your tribes (1:13). The stress on intellectual and moral qualifications is quite straightforward, but we will soon see that there is another factor which Chazal stressed. One of the principals which guide modern "western" legal systems is that "justice not only needs to be done, but needs to be seen." In other words, there is an idea that trials should be open to the public. This situation creates very difficult challenges, particularly in the realm of loshon hara and rechilut, which seem to have been put on the back burner by the popular call for "the public's right to know." It is felt that public trials ensure just judgements, but they often cause a great blow to a person's right to privacy. Often, a defendant or litigant is publicly humiliated, even though, at the end, he is found innocent of the charges. According to Torah law, the trial is not supposed to be open to the public. How then do we ensure the public's trust in the judicial process? Before one's appointment as a dayan, he is expected to stand up to the scrutiny of the populace. "Place for yourselves men ((אנשים (ibid.) implies public involvement in the eventual appointment of the dayan. Rashi explains אנשיםas כסופים. The commentaries on Rashi explain that they should be people for whose tenure as judges the community longs. (Divrei David). Ibn Ezra explains "G-d fearing" as "rumors should not have been spread about them." In other words, they stand up to public scrutiny. Rashi expounds on "known by your tribes" by saying: "If he [a judge] comes before you wrapped in a talit, you don't know who he is. But these [judges] you know since you grew up with him." Indeed, the judges we choose should stand up to public scrutiny before they are appointed, so that justice can be ensured. Subsequently, we should allow them to handle matters in a discreet manner which protects the dignity of the litigants. **************************************************************************** ******************* Pninat Mishpat - - Kiddushin - Discovery of an Invalid Witness - I What happens if one of the appointed witnesses at a wedding turns out to be invalid? Can we rely on people in the audience as witnesses? There is a concept that if there is a group of more than two witnesses and one turns out to be invalid, then the testimony of the entire group is invalid (Makkot 6a). Since there are always invalid witnesses at a wedding (especially, relatives), we elevate some of those present above the others by appointing them specifically as witnesses, and, by so doing, they do not get negatively affected by others (see Ritva, Kiddushin 43a). But if one of those witnesses is invalid, then many poskim feel that the testimony of everyone present is not valid and the couple is not married (see Shut Mahari Veil 7). Others disagree, saying that the appointed witnesses are indeed separate from the audience, and just as others don't affect their testimony, they don't ruin the testimony of people in the general audience (Shut Maharan Shick, CM 57). The Avnei Miluim (42:6) agrees with the opinion of the Rosh and other rishonim that only when witnesses testify together in court, does one invalidate the others. In contrast, if the joining together of invalid witnesses was only at the stage of witnessing the event, then the concept of one spoiling everyone else doesn't apply. Therefore, any two "kosher" witnesses present and aware of the goings-on at the wedding can validate it. **************************************************************************** ****************** Moreshet Shaul (from the works of Hagaon Harav Shaul Yisraeli zt"l) Admission of Previous Marriage (excerpt from a psak din, Chavot Binyamin, p. 357) A man came to court, demanding to be allowed to give a get to his wife or receive permission to remarry. He told the court that his wife admitted that she had been married previously and received neither a get nor official confirmation of her husband's death. At first, she told the courts that she had been married in a proper Jewish ceremony, but that her husband had been killed in the Russian Army. However, she was unable to provide documentation or sufficient proof to substantiate the claim of death. In the final session, she said that, in fact, they had not been married in a Jewish ceremony and that she had said so previously only out of embarrassment. Her request of the Court was to remain married to her present husband and receive appropriate monetary support. [Ed. note - our discussion relates to just one section of Rav Yisraeli's ruling, and many details are left out]. When one makes a claim in court and later on changes that claim, beit din does not accept the alteration by monetary cases out of fear that someone taught the litigant to lie (Shulchan Aruch, Chosen Mishpat 80:1). Despite that fear, by matters of a woman's permissibility to marry, she can make changes in her claims if beit din sees substance in her excuse for making the previous statement (Shulchan Aruch, Even Haezer 47:4). It can be demonstrated that the excuse need not be convincing, just reasonable. [Ed. note- after a long analysis of the halacha and various testimonies, Rav Yisraeli came to the conclusion that the woman could remarry without further proof of death of the first "husband" because of insufficient evidence that they had been married]. The mishna in Nedarim 90b rules that a woman who says she was involved in an adulterous relationship and is, thus, forbidden to her husband is not believed. The Rama (Even Haezer 178:9) brings two opinions on the question whether the husband is able to say that he believes her and force her to receive a get even after she retracts her admission. There is a fear that the husband does not really believe his wife and claims to believe her only to obviate cherem d'Rabbeinu Gershom, which forbids him from divorcing her against her will. However, the Noda B'yehuda (II, EH 120) says that if the husband professed his belief of her admission while she was still holding by her story (which he may do), then we cannot compel him to change his mind when she changes her story. Indeed, in the earlier court appearance, when the wife said she had been properly married, he had concurred. Therefore, the wife must accept the get and cannot invoke cherem d'Rabbeinu Gershom. Regarding the woman's monetary claims against her husband, we already pointed out that in monetary matters, one cannot make a contradictory claim after leaving court. Therefore, the husband does not have to receive her new version and is exempt from the payments she demands. **************************************************************************** *** Ask the Rabbi Question:Am I correctly remembering that there were boys, before bar mitzvah, reading from the Torah at a local synagogue? I have an 9 year old who is anxious to participate. Is it "kosher" for a pre-bar mitzvah child to read from the Torah? Are there other parts of the service that he can do? Answer: The gemara (Megillah 23a) states that a minor may be called for one of the seven aliyot which we have during the reading of the Torah on Shabbat. This view is even codified in the Shulchan Aruch (Orach Chayim 282:3). However, there are significant limitations. According to the Magen Avraham (ad loc.:6) and Mishna Berura (ad loc.:13), he may only be called for an aliyah but cannot be the ba'al kriyah and enable the congregation to fulfill their obligation through him. This is because of the rule that one who does a mitzva on behalf of another must be as obligated in that mitzva as his friend. A child can have an aliyah only on Shabbat when there are at least seven aliyot (ibid.:11). Only a minority of the seven aliyot can be done by children (ibid.:14). Furthermore, the very widespread practice is that children under bar mitzvah do not receive any aliyot, except for maftir (which isn't common either) (ibid.:12). On a week where a special reading is done for maftir from a second sefer Torah, a minor may not receive that aliyah because it is a separate obligation (Aruch Hashulchan OC 282:10). As we mentioned, minors can have only "additional aliyot" and cannot be used for the core of obligations. Children can lead the services for P'sukei D'zimra, "Anim Zemirot" and the end of Shabbat morning services, and Kabbalat Shabbat. They can also do gelilah. Each synagogue (with its rabbi's guidance) should find the suitable balance between the needs of the adults and the crucial need to make the children feel that they are an important part of its present and future. It is possible that the local synagogue you refer to follows the ancient custom to allow children to have aliyot or that it was maftir which you heard. Could you be referring to a "junior congregation," where children say together much of the prayers (except those parts which require a minyan)? For some children this is positive, while others can do better sitting with their parents. [Some of the terminology was changed from the original to reflect different levels of background.] Harav Shaul Israeli zt"l Founder and President Deans: Harav Yosef Carmel Harav Moshe Ehrenreich ERETZ HEMDAH 5 Ha-Mem Gimmel St. P.O.B 36236 Jerusalem 91360 Tel/Fax: 972-2-5371485 Email: eretzhem@netvision.net.il web-site: www.eretzhemdah.org American Friends of Eretz Hemdah Institutions c/o Olympian 8 South Michigan Ave. Suite 605 Chicago, IL 60603 USA Our Taxpayer ID#: 36-4265359

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