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Sunday, September 14, 2014

The so-called "Chumra of the Rashb"a"

Shalom to all.

I am new to this blog and I hope to make a meaningful contribution.

I would like to revisit a minor discussion which took place on the blog a short while back regarding what's been called the "chumra of the Rashb"a" i.e. not to scrape away a Negiah which took place prior to the conclusion of having written the second letter.

I would like to clarify two points: 1) it is a complete misnomer to call it the Chumra of the Rashb"a.
2) It is actually much more severe than if it was actually the chumra of the Rashab"a that we are concerned about. Allow me to explain with a basic introduction:

The Yerushalmi states:

"Irev es ha'osiyos - milmaalah: passul, milmaatah: kasher" (I have "shrunk" the actual passage to what the minimum  of whats needed for this discussion).

The Rashab"a (as well as the Ramba"n, and the Sma"k) interpret this to mean that if, as one is forming the second letter, it touched the letter preceding it, the second letter is passul and one may not scratch away the attachment as this would be a chok Toiches. The rational is that by virtue of the fact that the second letter has attached itself to another letter prior to the completion of its own formation - it has yet to become kosher letter, Now, to go ahead and grant the letter its initial "kosherness" via scraping is not permitted. If, however, the second letter attached itself to the preceding letter once its form was complete then it is perfectly permitted to scrape away the attachment. As a matter of fact, the attachment can even be left in place and all is still Kosher. In his rational for this the Rashab"a envokes a talmudic principle of "kol ha'raoy lebila - ein bila me'akeves bo". Meaning, that since the attachment took place once both letters had been completely formed, there would be no chok tioches in scraping away the attachment. As such, it can be considered as if the attachment is not there even without actually ridding it.

This, by the way, is how the Rashba"a paskened le'maaseh.

However, there are many Rishonim who come along and state that the Bavli categorically rejects such a distinction between an attachment "le'maalah" i.e. prior to the completion of the formation of the second letter, to an attachment "le'maatah" i.e. after the comple formation of both letters. They cite the statement of Rav "kol ois sh'ein gvil makif lah - pesulah". Now, since Rav did not qualify his psak in any way this indicates that any negiah is equally as passul and never would we accept the Rashba"s kula that an attachment that comes along after the formation of both letters is acceptable.

Now, the big question is: according to these Rishonim, can negios be fixed via scraping or not? So, the Ri"f and the Ramba"m while ruling like the Bavli in terms of the psul of all negios equally, make no mention at all that these negios may be scraped away. The Ro"sh, the Terumah, and the Mordechai, among others, do indicate that negios may be scraped away.

In other words, according to the latter Rishonim both the Bavli and the Yerushalmi have a Kula and a Chumra. According to the Yerushalmi, negios that happened pre-formation are passul and cannot even be scraped away (the only solution would be erasing the second letter and rewriting it). Conversely, Negios that happened post-fomation are not only permitted to be scraped, but can even be left in place without scraping altogether. The Bavli on the other hand has a chumra that all negios are problematic and must be dealt with. However, the kula is that they are allowed to be scraped away and there is not chok toiches in that.

Now, the big question is: on what basis did these Rishonim believe that the Bavli permits the scraping of Negios? Especially in light of the fact that the Yerushalmi feels that scraping Negios (at least the pre-formation ones) is chok toiches!!!

The one Rishon who actually explains the psak is the Mordechai. He envokes the Gemara in Shabbos which establishes that one is chayav on Shabbos for scraping away a chatoteres of a cheis therby resulting in two zayins. The Mordechai points out that if this scraping was considered chok toiches, then how could one be chayav for that on Shabbos? Certainly chok toiches cannot be considered "keshivah"!? He therefore concludes that when one is engaged in an act of separating two attached letters - it is not considered chok toiches.

Now, the Mahahra"m banet comes along and asks: but we all know that it is not permissible to go ahead and scrape away the chatoteres of a cheis in order to produce to zayins!!! He concludes therefore that although it is true that, le'halacha, in Sta"m such an act would definitely constitute chok toiches, nonetheless, the Rishonim felt that at least regarding a case in which the two attached letters each retain their own look - we could draw on this Gemara as an indication that it is permissible to scarpe.

The fact of the matter, however, remains that from that Gemara there is clearly no solid indication to the permissibility of scraping negios. The Gemara considers it kesiva only in regards to Shabbos because "mleches machsheves" is problematic on Shabbos and whether it is formal kesivah or not is irrelevant in so far as Shabbos is concerned.

Hence, the Gr"a concludes that this "proof" is actually very problematic and difficult to accept.

So, where does all of this leave us? It leaves us with
1) The Ri"f and the Ramba"m who while paskening like the Bavli that all negios are problematic make no mention of the permissibility of scraping them.
2) An very problematic attempt on the part of the Mordechai to infer a proof from the Bavli that scraping Negios is permissible.
3) A Yerushalmi which indicates that at least in regards to pre-formation negios - it is chok toiches to scrape them.

So, now we can all see that the reason for the chumrah is not merely "being choshesh for the Rashb"a". The reason for the chumra is because there is no real indication in the bavli that it is permitted to scrape negios at all!!!

Now, I would like to take all of this one step futher. When the Biur Halacha (Siman 32, 18 "ve'im gorar ve'hifridah kasher") brings the Gr"a as well as others who raise this issue to begin with, he only specifies that the issue would be with negios that happened "le'maalah" and "be'emtza". He does not, however, make mention of a negia which happened "le'matah" i.e. post-formation, but prior to having lifted the kulmus (the lifting of the kulmus being the ultimate indication of having concluded the letters formation).

However, earlier on (Siman 32, 16) the Biur Halacha struggles with a different yet related issue. It is well know that the Beis Yosef has two approaches to understanding the nature of the requirement of hekeif gvil. The first is that the requirement of Hekeif gvil pertains only to negios. The second is that the requirement of hekeif gvil relates both to negios as well as to holes in the klaf, but that the requirement to begin with is only applicable pre-formation of the letters. So, does this second approach not completely contradict the assertion of the majority of Rishonim mentioned above? We stated that most Rishonim hold that when Rav said "kol ois she'ein gvil makif lah - psulah" it means that it is always pasul regardless of when the compromise took place!

The Biur Halacha therefore concludes, that although the second approach of the Beis Yosef indeed indicates that the Bavli embraces a pre vs. post-formation distinction when it comes to the issue of hekeif gvil, nonetheless, it differs to that of the Yerushalmis. The difference lies in the definitions of "pre" and "post". According to the Yerushalmi, "post-formation" means the moment the minimum requisite is formed. According to the Bavli, that moment might still be considered "pre-formation". It is only after the Sofer has actually lifted the writing instrument from the klaf that we now can say "post-formation". So, practically speaking: if I am writing a vav and at the very moment that I complete its tip - it makes contact with the bottom of the preceding letter. According to the Yerushalmi, since the minimum required shiur of a vav was in place prior to the attachment - it is considered a "post-formation negiah". According to bavli, however, it is still considered a "pre-formation negiah" since I had not yet lifted the kulmus. As such, both approaches of the Beis Yosef concur that the Negiah is problematic. According to the first approach - all negios are probelmatic - even post-formation ones. And even according to the second approach such a negiah is deemed a pre-formation negiah and is therefor pasul as well.

Accordingly, it would seem logical to conclude that even a negiah "le'maatah" i.e. at the very end of the writing but prior to having lifted the kulmus, is included in the Chumra not to be scraped.

This point I am not completely sure of, however. It is possible that since the Yerushalmi clearly holds that such a negiah may be scraped (and according to the Rashab"as interpretation - doesn't even require scraping at all), so maybe the Gr"a would be perfectly comfortable with scraping in this case.
Because regarding this case of "le'maatah" we have
1) The Yerushalmi that would certainly allow scraping.
2) Many Rishonim who hold scraping of Negios is always permitted.

In reality, the Keses writes about this case too that there is justification to being machmir.

In conclusion:

For our purposes there are three categories of Negios:

1) "le'maalah/b'ematzah" - A negiah that takes place before the second letter meets its minimum required form.
2) "le'maatah" - A negiah that takes place after the minimum required form is in place but prior to having lifted the kulmus.
3) "le'achar she'silek yadav" - A negiah that takes place after the kulmus is lifted

There are three opinions:

1) The Shulchan Aruch Ho'rav: all categories are perfectly permissible to be scraped. (This is the psak of the Mechaber as well. The Shu"A Ho'rav is very elaborate, however, in articulating the heter).

2) The Mishnah Brurah: category 1 should not be scraped in a Sefer Torah, nor in Tefillin/Mezuzos if you catch it on the spot. Rather the entirety of the second letter should be erased. If one only caught it after continuing to write - then scraping is permitted and one must not erase all the way back. In Hashems name scraping is permitted even in a Sefer Torah. Categories 2 and 3 are permitted to be scraped.

3) The keses Ha'sofer: the same as the Mishnah Berurah, but considers it worthwhile to see category 2 the same as category 1.

I hope I have written this clearly and that it is useful to the readers. Please please please write feedback.

P.s. this article remains profoundly wanting. I have not included many sources as I wanted to present a bigger picture to the extent possible. Please feel free to ask and I can refer you to all sources. Also, forgive me for all of my transliteration... I don't type well in hebrew etc. Finally, this is a very concise overview. There are many many aspects of what I've written that can be developed further - some le'iyun and some le'maaseh. Please understand that I have attempted to stay as focused as possible.











17 comments:

  1. The Rambam doesn't bring the halachos of Chak Tochos at all, in fact.

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    Replies
    1. Good point! I never realized that. Still the keses points out that the Ramabam does not offer a solution to the problem of negios... As if to diminish the impression that one might get from the Be is Yosef that "most" Rishonim permit the scraping.

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  2. נא לעיין היטב בשיטת הבית יוסף והרמב"ם דנקב אחר הכתיבה אינו פוסל, וממילא יש להבין שגם נגיעת אותיות שזה אותו פסול של חסר מוקף גויל - אינו פסול בצורת האות, ולכן לא שייך בה חק תוכות
    פסול היקף גויל הוא הלכה בכתיבת האות, לא בציור צורת האות

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    1. What you are saying is completely not agreed upon by all. Of course the Mechaber followed the opinion of the Rosh, Trumah and others who ruled that its permissible to scrape a a Negia.
      However, according to the Rashb"a, Ramba"n, Sma"k, it is chok toiches to give a letter its initial "kosherness" even if all your doing is scraping a Negiah.

      Furthermore, according to these Rishonin the Bavli concurs to this as well.

      Furthermore, there is no indication in the bavvli that scraping is not chok toiches.

      As to your "deduction" from the permissibility to scrape a letter away from a hole... the keses in Chakira 6 writes clearly that if a letter was not mukaf gvil at the time that it became a letter - it is indeed not allowed to scrape it away from the hole - unless its a shaas ha'dchak.

      Now, I am fully aware of the opinion of the Shu"A horav who paskens like the mechaber and explains in unequivical terms that when scraping to address an issue of hekef gvil there cannot be chok toiches (unless there was shinuy tzurah involved).

      I am simply trying to bring awareness to the fact that being machmir not to scrape is not just a far-flung "out there" chumra. When one learns the Sugya one discovers tgat the heter to scrape is a big chiddush.

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    2. However, according to the Rashb"a, Ramba"n, Sma"k, it is chok toiches to give a letter its initial "kosherness" even if all your doing is scraping a Negiah.
      Since when do we follow a minority of Rishonim?

      Furthermore, according to these Rishonin the Bavli concurs to this as well.
      Not so. They have to fall back to Yerushalmi for their proof.

      Furthermore, there is no indication in the bavvli that scraping is not chok toiches.
      Again no so. The Rif, who says that scraping is not chok tochot, does nothing but quote the Bavli.

      As to your "deduction" from the permissibility to scrape a letter away from a hole... the keses in Chakira 6 writes clearly that if a letter was not mukaf gvil at the time that it became a letter - it is indeed not allowed to scrape it away from the hole - unless its a shaas ha'dchak.
      That is not so clear from the Kesset there. He does bring a minority of opinions that say that. However, again, the majority opinion is the oposite as the Biur Halakha and Noda B'Yehuda point out.

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    3. PS the Noda B'Yehuda is found Y"D 169. The Biur Halakha is ואחר כך נפסק

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    4. Since when do we follow a minority of Rishonim?

      We don't. That's why the Mechaber paskens that its fine to scrape negios. HOWEVER, this psak is seen as problematic by: The Ram"e Mi"pano (Tshuvah 36), Shaarei Efrayim (Siman 5, Pischei Shearim Seif 10), Biur Ha'gra (Seif katan 50), Keses Ha'sofer (Siman 8, seif 15, Chakira 6), Even Ha'ozer (Siman 32).

      I am trying to bring awareness to the fact that being machmir against the psak of the Mechaber is an approach taken by many prominent Achronim. It is not a "fringe" Chumra. Furthermore, as one learns the Sugya properly... one discovers that THERE IS NO SOLID INDICATION IN THE BAVLI FOR THE HETER. (See the Biur Ha'gra (Siman 32, Seif katan 50) who brings the Mordechais proof into serious question. See Keses Hasofer (Chakira 6) who brings alternative readings of the Yerushalmi - other than that of the Rashb"a, Ramba"n etc. - into serious question).

      Not so. They have to fall back to Yerushalmi for their proof.

      Please read the Tshuvah of the Rashb"a (not just the part that's quoted in the Beis Yosef). You will see clearly how he sees the Bavli in concurrence with the Yerushalmi. Furthermore, learn the Tshuvah of the Rada"ch (Bayis 1 - yes its mamoth), and you will see clearly how he establishes that the Rashba"a is in complete concurrence with the Bavli. Furthermore, according to the Levushei Srads take on Ta"z (Seif Katan 14) the Yerushalmi is complete aligned with the second answer of the Beis Yosef.

      Again no so. The Rif, who says that scraping is not chok tochot, does nothing but quote the Bavli.

      There exists no such statement in the Rif.

      That is not so clear from the Kesset there. He does bring a minority of opinions that say that. However, again, the majority opinion is the oposite as the Biur Halakha and Noda B'Yehuda point out.

      This is as clear as day. Please read the paragraph in Chakira 6 which begins with the words "ve'hinei aho de'kosav beShu"a". You will see towards the end of the paragraph where he clearly writes that the chumra applies equally to holes if the letters contacted them "pre-formation".

      Please understand I have only cited what I have learned myself inside the original texts.



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    5. We don't. That's why the Mechaber paskens that its fine to scrape negios. HOWEVER, this psak is seen as problematic by: The Ram"e Mi"pano (Tshuvah 36),
      Again minority opinion
      Shaarei Efrayim (Siman 5, Pischei Shearim Seif 10),
      Don't have it to check.
      Biur Ha'gra (Seif katan 50),
      Nope. That specific Biur HaGra says,
      מנחות כ''ט ל''ד ודלא כירושלמי וכמו שכתבתי לעיל
      So he is saying it is not like the Yerushalmi that the Rashba and others are relying upon.
      Further he says above in S"K 45
      אע''ג דבירושלמי פרק ב' דברכות אמרינן עירב האותיות אית תני כשר אית תני פסול מאן דאמר כשר מלמטה מאן דאמר פסול מלמעלה שעד שלא נעשה האות נפסלה מה שאין כן למטה שאחר שנגמר צורת האות נדבקה ובאמצע איבעיא להו כתבו המרדכי ושאר פוסקים אמנם בתלמידינו אמרו כל אות שאין מוקף גויל כו' ולא מפליג בין למטה או למעלה שלעולם צריך היקף
      Here here clearly holds with the Mordechai and Rov poskim against those who hold like the Yerushalmi.
      If we jump over to S"K 52 we find that he also holds there like the Mordechai and Rov Poskim

      I am trying to bring awareness to the fact that being machmir against the psak of the Mechaber is an approach taken by many prominent Achronim. But it is not. It is a very minority opinion. The Noda B'Yehuda, the Arukh HaShulchan, The Mishnah Berurah, the Bach, the Kol Yaakov all hold according the Mechaber, and they bring numerous other Achronim(too many to list in a single blog comment). The other side is very side minority.

      Please read the Tshuvah of the Rashb"a (not just the part that's quoted in the Beis Yosef). You will see clearly how he sees the Bavli in concurrence with the Yerushalmi. The B"Y, the GR"A and the Kesset HaSofer Chakira 6 all point out that this sevara relies upon the Yerushalmi, and is not in accourdance with the Bavli.


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    6. You are not understanding the Gra. You are conflating two seperate issues.
      Issue 1) the mechaber paskens all negios are passul. Issue 2) the mechaber paskens that they can be scraped.
      Now, the fact that all are passul lies in the terms "psulah" in Ravs statement in Bavvli. This indeed is against Yerushalmi. The fact, however, that they are muttar to scrape - is not indicated in bavli at all!
      That's the whole "tzorich iyun" against the Mordechai...

      This biur hagra is brought both in the biur halachah as well as in chakira 6.

      As far as your last point is concerned... You are completely mistaken. I beg you to please learn the Rashb"a and the Rada"ch. You will see how the Rashb"a sees the bavli in accordance with yerushalmi.
      However, even if you hold that bavli holds all negios are passul... again, there is no indication that they are fixable!

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    7. You are not understanding the Gra. You are conflating two seperate issues.
      What Chutzpah!!!
      You cited the Biur HaGra S"K 50 claiming that it states:
      See the Biur Ha'gra (Siman 32, Seif katan 50) who brings the Mordechais proof into serious question
      and
      hat's why the Mechaber paskens that its fine to scrape negios. HOWEVER, this psak is seen as problematic

      I quoted word for word that Biur HaGra, and will do so again:
      מנחות כ''ט ל''ד ודלא כירושלמי וכמו שכתבתי לעיל

      That is the sum entirety of what it says, and you are going to accuse of me not understanding it?!?!? It simply does not say what you claim it says.

      Now as far as Biur Halakha, and the opinions brought there(you were I see referencing the Biur HaGra 51) namely the Gra and the Shaarei Ephraim, they are not taking issue with the ruling the Mechaber, they are simply explaining that when he says Kosher, it means B'Diavad. They are no longer kosher l'chatchila. That has nothing to do with the Chumra of the Rashba. The Rashba clearly hold that it is posul.
      While all other authorities(at least all that I know of) hold that it is kosher B'diavad. Rav Ovadia Yosef, as well as his sons Rav Yitzhak Yosef and Rav David Yosef all write that. His Rav the Yaskil Avdei brings that down as well. If memory serves so does the Kol Yaakov.

      As far as your last point is concerned... You are completely mistaken. I beg you to please learn the Rashb"a and the Rada"ch. You will see how the Rashb"a sees the bavli in accordance with yerushalmi.
      However, even if you hold that bavli holds all negios are passul... again, there is no indication that they are fixable!

      No, I'm not. You simply need to study this in depth a bit more. You clearly are not grasping all the varying nuances and are conflating issues, such as B'diavad and pasul.

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    8. First of all, I mistakenly wrote Biur Ha'gra 50. I'm sorry. It doesn't change the fact that the Gr"a says what I cited albeit in a different dibbur ha'maschil.

      Now, to your point: I have a simple question for you: on what basis would it be "not kosher le'chatchila"? If there is no chok toiches in scraping, what would make it a "b'dieved"?

      Secondly, the words of the Biur Halacha are "din zeh... yesh le'fakfek bo". Meaning the din of the Mechaber that its kosher after scraping is questionable.

      Thirdly, when you read the Biur Ha'gra its clear that by dismantling the Mordechais proof that scraping is allowed... the permisibility of scraping altogether comes into question.

      Fourth, the keses (8/15) writes clearly "ein le'hatir" unless its a shaas hadchak.

      So, to clarify: these Achronim (Ram"e mipano, Gr"a, Shaarei Efrayim, Keses) hold that it is not Muttar to scrape unless its a Shaas Hadchak. Conversely, if one did scrape it is still kosher lechatchilah;)

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  3. I think we can both benefit from a live discussion. Here's my email address: yosefyrabin@gmail.com

    Could you email me your number please?

    Kinas sofrim tarbeh chochmah

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  4. Now, to your point: I have a simple question for you: on what basis would it be "not kosher le'chatchila"? If there is no chok toiches in scraping, what would make it a "b'dieved"?
    Rav Yitzhak Yosef wrote a nice book on how to learn the Beit Yosef and the Mechaber. Pick it up, he explains the various Klalim there, that make it clear that is the intent of the mechaber. Aside from that, I have a stack of responsa that declare that as his intention...

    Secondly, the words of the Biur Halacha are "din zeh... yesh le'fakfek bo". Meaning the din of the Mechaber that its kosher after scraping is questionable.
    No... it means that the reasoning must be discussed, that is unless you think that the Chafetz Chaim, who rules like the Mechaber is contradicting himself. The Biur Halakha explains, like many of the other responsa that I have mentioned that when the Mechaber says kosher, he means B'diavad.

    Thirdly, when you read the Biur Ha'gra its clear that by dismantling the Mordechais proof that scraping is allowed... the permisibility of scraping altogether comes into question. Absolutely not!!! His Tzarik Iyun is upon the halakha of the Mechaber not upon the Mordechai who he says in several places the halakha is like(including in the next two seifei katan).

    Fourth, the keses (8/15) writes clearly "ein le'hatir" unless its a shaas hadchak. So what? We don't follow minority opinions.

    So, to clarify: these Achronim (Ram"e mipano, Gr"a, Shaarei Efrayim, Keses) hold that it is not Muttar to scrape unless its a Shaas Hadchak. Conversely, if one did scrape it is still kosher lechatchilah;)
    Wrong. The GR"A and Shaarei Efrayim hold that it is B'diavad as the Biur Halakah says דכדיעבד דמי.

    The Rama M'Pano and the Kesset HaSofer hold like the Rashba... A very minority opinion.

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  5. While the in depth discussion is of great interest, the bottom line is that while the clear majority of rishonim and the halacha psuka of the SA is not like the Rashba et al and the Ramah and the majority of nosei kelim/achronim concur, the MB and Keses do say that lechatchila one should/must be choshesh for the Rashba. Furthermore, Rav Friedlander, (b'shem Rav Elyashiv) holds that following the SA makes the ksav, at most, minimal mehudar (some say its not b'geder mehudar at all). Also see Rav Shternbuch in Tshuvos Vehanhagos (chelek 5, siman 15) so in fact, this shouldn't be referred to as a chumra but as an important hiddur.

    (The Olas Tamid, Keneses Hagedola and the Divrei Chaim also hold like the Rashba and the Daas Kedoshim is grudgingly lenient and the famous sofer, Rav Nesanel Tefillinsky writes that he was makpid to follow the Rashba.)

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  6. Thank you.

    I feel lime its important for us to understand the underpinnings of the whole issue. Because when one does so, it becomes obvious that the "chumra" is not "just a chumra", but something to take very seriously.

    Unless, of course you're Chabad. Then just go along with the Shu"A harav that writes very emphatically that there is no issue: "gorer ve'ein bekach klum".

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