[Avodah] [Areivim] jews?

[Micha Berger]

On Mon, Aug 18, 2008 at 09:35:25PM +0100, Chana Luntz wrote:
: RZS writes:
:> Why?  AIUI, we (the BD or the parents) accept ol mitzvot on the minor's
:> behalf. 

: The adoptive parents have no halachic status vis a vis this non Jewish child
: - so how do you get to what is effectively a form of shlichus in which they
: act on behalf of this child?  And Beis Din - look at how complicated the
: issue is for Beis Din to separate a Jewish child b'yadam from treifos and
: neveilos -  and this goes way beyond that.  

The KOM is not done by BD. It's done by the child upon reaching an
adult. It's delayed al daas BD, and BD can agree to the chovos ha'eivarim
(milah, miqvah and qorban) for him on the ground of zakhin le'adam sl. The
adoptive couple would serve as apotropei BD, without whose chinukh the
geirus would not qualify as a net positive, and thus there can be no
zakhin le'adam. After all, a 12 yr old who accepts ol mitzvos but she
wasn't raised in a way that it's easy for her to follow through on it,
would be Jewish but an avaryanis.

(BTW, RSRiskin once told us in HS that when he officiates at a geirus,
he requires that money be set aside for the olah. Animal sacrifice is
something the modern mind balks at, but is part of qabbalas ol mitzvos
even though we currently can't do them. Therefore RSR wants it to be
made real. I think, though, that this opens up halachic problems with
heqdeish. And all our questions about fiat money, particularly when the
money may just be wired from one account into an escrow with no physical
object involved at all.)

:> We assume that if he had daat he would have agreed to accept
:> it, so we do it on his behalf, subject to his approval when he grows up.

: BTW though, even this opens up a relatively simple way of dealing with the
: issue faced by the State of Israel - get Beis Din to convene every year and
: accept ol mitzvos for every minor born to an Israeli who came in under the
: law of return (or whatever criteria you want to use to make sure you catch
: whomsoever you want to catch).  If they had been doing this since the
: creation of the state - we would have a *much* more limited problem today.

Such a child would not be apiring to the ideal of keeping mitzvos upon
turning 12 or 13, and thus we would not have an [implied] KOM. The geirus
would not be chal unless the parents provide chinukh.

:> Or, in the case of the father, he has total reshut over his child, and
:> can accept ol mitzvot on his behalf, substituting his own daat for his
:> child's.

: A non Jew does not have this halachic status vis a vis his child (after all,
: in many ways halachically, we don't even recognise his child as his) and
: adoptive parents have even less, probably at most a dina d'malchusa dina
: form of reshus.

I would argue that parents who adopt a non-Jew, as apitropei BD, have
been given reshus and hischayvus for the child beyond the rest of Kelal
Yisrael. MIGHT even justify barukh shepatrani.

:> They don't have to make a formal protest, they just have to not be
:> keeping mitzvot. By continuing to live as if they were obligated in
:> mitzvot, they signify their assent to the commitment that was made
:> in their name.

: Source? - the Shulchan Aruch seems to say precisely the opposite:

: Yoreh Deah siman 268 si'if 7 "And whether he was a minor megayered by his
: father or by beis din he is able to protest when he becomes a gadol and
: [then] his din is not like a Yisroel mumar, but rather like a non Jew".

: Si'if 8:  "in regards to what are we speaking, when he does not conduct
: himself as a Jew [noheg minhag Yahadus] when he becomes a gadol, but if
: conducts himself as a Jew when he becomes a gadol then he is no longer able
: to protest."

Se'if 8 seems to go beyond what I said -- we require both implied
acceptance through behavior and a lack of formal renunciation. It's not
so much the opposite as not dealing with the impossibility of knowing
when would be that time when machaah is possible.

My source, BTW, was the BD consisting of R' Zvi Flaum, R' Matis Blum
(Torah laDaas) and R' Dovid Scheinfeld (or: my LOR of the time, my
rebbe-chaver, and my father's LOR). Our case was messier, as the birth
mother's mother told us that she was happy that he was going to a Jewish
home, because her mother was born Jewish. Not quite grounds for saying
it's only tevillah as we are nohagim after shmad, but not quite the
certitude of saying we're dealing with geirus, either.

...
: However you want to go on kabbalat ol mitzvot, there is no question that one
: of the outcomes of the sugya in Yevamos 45a and following is that for a
: valid conversion you need three kosher dayanim.  That, BTW seems to be the
: basis for the nullifications that has sparked all of this off - if the
: dayanim in question are not kosher, then all the conversions they do are not
: valid, no matter whether there was in other ways the most perfect of
: requirements.  A conversion beno u'bein atzmo (ie a private conversion, no
: matter how sincere, involving tevila and mila) is not a conversion.  And
: similarly a conversion in front of somebody not kosher to be a dayan does
: not count for anything.

As well as the problem that three non-O rabbis aren't going to insist
on parents who raise the child O, and thus the child won't be noheig
minhag Yahadus.

I can't touch RnCL's question in the other post about defining KOM.o
However, while:
> As the Shach puts it in Yoreh Deah siman 268 si'if katan 23 - "from
> here [ie the case of Hillel accepting the convert] can be learnt that
> all is according to what is seen by the eyes of the beis din" (see the
> sources he quotes there). On the other hand, explicit statements in the
> gemora, whether then brought explicitly in the Shulchan Aruch or not,
> carry quite a lot of weight.

The Mararsha has the maaseh as Hillel accepting the person into his
geirus class, and that the geirus didn't occur until after the person
completed a lot more education.

We discussed this in March, when the geirus controversy was in the news.
(RnCL cited the same Shach, and there also notes that his source is
Tosafos.)

At the time I asked whether the machloqes was about the etzem need for
KOM, or in defining it. Perhaps the Shach is saying like Rashi (Shabbos
31a) that a BD can decide that KOM is satisfied even with an objection
that is likely to fall away. That is Shitas

I should repeat RSB's suggestion:
> I would suggest that anyone interested in reviewing the sources on Kabalas
> HaMitzvos as an essential element begin with the sugya in Yevamos 46-47
> and the Rishonim, especially the Mossad HaRav Kook edition of the Ritva
> and the footnotes there as well as the Encyclopedia Talmudis entry
> on Gerus...

In v25n115, RDE gives sources that show a very maximal definition of
KOM, starting with Bekhoros 30b. I recommend the copy at
<http://lists.aishdas.org/htdig.cgi/avodah-aishdas.org/2008q1/006718.html>,
which won't have all those question-marks the digest turns Hebrew into.

Tir'u baTov!
-Micha

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