[Avodah] Maakeh

[Jacob Farkas]

> On Thu, Jan 04, 2007 at 01:29:50PM -0500, Jacob Farkas wrote:
> : Actually the Steipler held that the Issur Hezeq is Lo Sukhal Lehisaleim
> : (The lo sa'asei of Hashavas Aveidah)...
> 

R' Micha Berger wrote:

> This is more consistant with the rishonim. The Minchas Chinukh seems to
> be the only source for saying that lifnei iveir could be applied beyond
> the realm of bad advice.

Yad Remah in Bava Basra 26 is a Rishon who explicitly states that 
V'lifnei Iveir applies to the literal. Rashi in Hullin implies that 
V'lifnei Iveir was "literal only" for the Kusim, and his language 
implies that according to Hazal it is literal plus figurative. Meshekh 
Hakhmah (though not a Rishon) suggest the literal and figurative.

 >
> Jacob Farkas:
> : the Steipler quotes the MH's Sevara as a source to Biur HaGRA who held that Hezeq is an Issur Torah
>

R' Micha Berger:
> Why? Right after providing a different pasuq as the basis of the issur he
> argues the Gra's de'Oraisa from a chiddush of the MC which runs directly
> against the Sifra as quoted by Rshi (thanks RJF for confirming that).

Forgive my poorly written paragraph in the last post. MH is not talking 
about Hezeq in general as much as Bor Berushus Harabim, which he 
considers to be prohibited because it violates V'lifnei Iveir. The 
Steipler has a haqirah about Hezeq, in general, if there is an Issur, 
and is it Deoraisa or Derabanan. He quotes MH who describes a 
prohibition concerning (exclusively) digging a Bor, but his haqirah is 
with hezeq in general, what is the nature for prohibition.

His thesis is that it prohibited, midoraisa, from the Lav of lo sukhal 
l'hisaleim.

In latter footnotes (perhaps in later editions, or maybe after he put 
together the Sefer) he quotes the Biur HaGRA who implies that Hezeq is a 
deOraisa, and also quotes Yad remah who says that V'lifnei Iveir and 
VeAhavtah Lereiakha komokhah are commandments against hezeq. This does 
not mean that his original thesis is mistaken, but it does support his 
view that hezeq is deoraisa, which satisfies other issues he raised. 
Whether he needs to rely on his own Sevara of hashavas aveidah is not 
relevant, he didn't retract his shtickl, he just mentioned another 
shitah in his notes.

When I wrote "...quoted MH Sevara", all I meant was "quoted V'Lifnei 
Iveir, in literal form.." It was poorly written, and I hope that 
explains this further.

> 
 > Jacob Farkas:
> : Digging a Bor Bereshus harabim is absolutely an Issur, the Mahloqes
> : Aharonim is wether it is an Issur Torah, or Issur Derabanan...
> 

R' Micha Berger:
> And, if I understand RMK's point correctly, the idiom "bor birshus
> harabim" does not relate to the issur, but comes from a discussion of
> paying the consequent damages. (I'm not clear on the limits of what's
> called "tort law" so I'm posting this as an opportunity to be corrected.)

I understood the discussion of Maakeh and whether certain conditions are 
obligatory from a danger perspective vs. a potential Din Torah of Bor to 
be under the assumption that Bor is not "assur," but you are opening 
yourself up to a possibility of damages. The question would be moot if 
you consider that in both cases (maakeh and bor) you have an Issur 
Torah, whether someone falls or otherwise, the prohibition is still 
biblical, for creating this hazardous condition.

The idiomatic referral of Bor bereshus harabim as a Hoshen-Mishpat-esque 
condition ignores the reality that creating this condition includes, be 
it general hezeq according to the Steipler, be it the literal V'lifnei 
Iveir, as understood by some rishonim (and the MH) to be included in the 
prohibition thereof, be it VeAhavta as well, according to Yad Remah.

I am supporting R' Torczyner's claim, in earlier posts, that if the 
situation is dangerous there is an Issur, even if not covered by Maakeh. 
He was challenged that perhaps it won't be an Issur, rather it creates a 
situation that is under the jurisdiction of torts, implying that the 
creation of said situation was not in itself problematic.

[As to how the MH is able to reconcile the Sifsei Hakhamim's proof that 
Rashi al haTorah was compelled to explain that V'Lifnei Iveir is 
metaphoric only, is not a strong argument. As the Issur is the context 
of the prohibition misleading someone, it is still davar haMasur l'leiv, 
as the Issur includes numerous scenarios that the intentions are not 
known to others, KNLAD]

--Jacob Farkas