[Avodah] KSA, MB, AhS, Chayei Adam and other codes

[Micha Berger]

On Tue, Aug 26, 2008 at 01:01:51AM -0400, Richard Wolpoe wrote:
: YOU missed my point. her LATER discovery was of a character trait that
: WAS ALWAYS THERE and did not change, it was just masked. the Mikash
: Ta'us is that had she been aware of the pathology of the person day one
: she would nto have agreed to the marriage.

I didn't miss it, I showed that's not how mekach ta'us works, and no one
used mekach ta'us to include latent rather than unknown flaws. The flaw
must be known to others -- Qiddushin 11a. And that's true for fields too
-- if you buy legume-bearing land thinking it could support wheat but
it turns out the nitrogen level is insufficient, it's not a meqach ta'us.
(Most qitniyos put nitrogen /into/ the soil; wheat consumes it.)

...
: Unless the husband suffered a trauma and afterwrds it manifested as a
: NEW character flaw, Rachkman has every rigth to say that the falw was
: there. all along

I disagree with the metzi'us. A guy can get progressively crotchety or
lazy with age without any trauma.

Later, RRW writes:
: > He did! He may have not meant to, but the agunos who came to him didn't
: > need eid echad, eid mipi eid, or any of the other super qulos in birur
: > Chazal allowed to permit remarriage.

: Well than maybe Rackman went fartehr than I am aware of. But I am nto
: aware of this.
: I am ONLY referring to the lemafrei'a hafaka'ah point not to other
: "kvetches" or abuses.

Hafka'as qedushin doesn't require any of these things. Why couldn't she
come to RER's beis din, say "I didn't realize he would turn out to be
a lazy bum who won't earn a paycheck", and get the marriage declared a
meqach ta'us.

Jumping back:
: BD under extreme circumstances can ignroe precedent. This is clear

Ediyos 1:4-5 all that stuff about gadol mimenu bechokhmah uveminyan.
Where does it make an exception for she'as hadechaq?

...
: I don't accept Rackman. But I fail to see how you cannot! He is far
: less radical than many of the shitos that you DO accept. Therein lies the
: inconsistency! Fater all there IS an imperative to be mattir agunos! So
: his heuristic wieghing MSUT be kosher even w/o a defeinte precedent.

...
:> No maqor means no senifim. Not by implication, by identity. If there
:> were senifim, they would each be pieces of a maqor. Here, there is just
:> reasoning that was never used before that would provide a more derekh-noam
:> solution that thousands of pages of gemara, rishonim and acharonim.
:> Saying that reasoning must be wrong, not a factor to be added, is quite
:> strongly supportable.

: HUH? The misgeres says KSA has not maqor. what does sniffim ahve to do
: with it! My sniffim comment was irrelveant.

There are no pros or cons to way about an option that doesn't exist. A
pro or a con to choosing one action or the orhter /is/ a senif. Which is
what I pointed out back near the top of this dicussion, 10 months ago --
the fact that teshuvos are often decided in senifim is explicit weighing
of pros to add up to a conclusion, rather than having a single rule
that says A & B imply pesaq X (to try to imitate computer algorithmic
type language).

This is why I do not accept RER's BD as within eilu va'eilu. There
is nothing to weigh the merits of. Pesaq requires applying different
considerations to the viable alternatives. If the notion isn't divrei
E-lokim chaim then there is no way to say "vehalakhah ke-"moso.

: I am saying this, SO WHAT if there is not maqor? How is that a flaw?
: If precdent can be ignroed it can be ignroed!

One would have to know (1) when can precedent be ignores; (2) what kind
of weighting has it historically been given. (That's self-referential,
but not circular.)

:> This is what I'm talking about, that your algorithm doesn't include the
:> majority of baalei mesorah. Look through Otzar haPoseqim in YD.

: Who is this?

A survey of shu"t by a group founded by R' Isser Zalman Meltzer. Organized
to follow the Tur/SA sequence. (EhE 17 (Agunah) alone is numerous
volumes. In case you ever need to deal with a "rabbinic will -> halachic
way" argument, this is a useful factoir.)

:> "A snif
:> here and a snif there" is lemaaseh the normal way to do things. Either
:> you accept the concept, or you have to exclude the majority of shu"t
:> from your notion of the halachic process. I would faster conclude your
:> model is wrong.

: nve saw this technique in SA/Tur and primary nos'ei keilim.

But it's all over shu"t. Ad for primary nos'ei keilim, see the Shach YD
96:12 (and Biur haGra 96:9), who say one can use the minority rishonim
on a davar charif as a senif lehaqeil.

You mihgt also want to see the Radvaz (shut III 481) and the Tzitz Eliezer
VI 40:12:10-12 who declare the notion of a prodessional is consumed by
his work (AZ 20a) to be a senif lehaqeil usable in inyanei yichud. (But
only a senif lehaqeil, not a matir.)

As I wrote, your model of how halakhah works has a level of purity that's
elegent. But what you're left with carves the majority of responsa and
poseqim out of the mesorah.

:-)BBii!
-Micha

-- 
Micha Berger             Like a bird, man can reach undreamed-of
micha at aishdas.org        heights as long as he works his wings.
http://www.aishdas.org   But if he relaxes them for but one minute,
Fax: (270) 514-1507      he plummets downward.   - Rav Yisrael Salanter