[Avodah] shabbas//mishum eiva, etc???

[Micha Berger]

On Mon, Aug 15, 2011 at 11:05:02PM +0100, Chana Luntz wrote:
:>: different to telling them to act to violate a prohibition.  An example of an
:>: enactment vis a vis d'orisa aseh is the rabbinical prohibition on blowing
:>: shofer on shabbas

:> According to R' Yonasan Sacks (of YU and the Agudah of Passaic-Clifton),
:> this power is limited to gezeiros protecting more chamur mitzvos. Not
:> all rabbinic legislation are gezeiros -- gezeiros here means specifically
:> avoiding violation due to habit or accident

: Not sure what this adds.  Clearly the rabbis are not likely to just stam
: tell people to shev v'al ta'aseh for no reason at all...

I am just being more specific. You wrote about "enactments", I added
that from what I learned, this is only permitted of specific kinds of
enactments. If the chakhamim wanted to make a different kind of din
rerabbanan that implied violating a deOraisa besheiv ve'al ta'aseh,
they lack the authority to do so.

:                        For example, since we are getting in to Shmitta
: below, how about the statement that when the rabbis instituted Shmitta
: rabbinically, that causes a shev v'al ta'aseh situation regarding the
: collecting of d'orisa loans (Gitten 36b).  How does that fit within the
: definition of gezeros as defined here?

I don't understand the question. I'm talking about violating an issur or
chiyuv deOraisa. Is there a chiyuv to collect your loans? Second, CM has
entirely different mechanics open to them -- hefqeir BD. But really I
want to focus on the first point: I understood RYS to be speaking about
violating the chiyuv of blowing shofar, not about telling people they
can't collect a loan HQBH tells them it's within their rights to.

...
:> : b) once you are in the realm of aseh's the gemora in Brachos 19b- 20a
:> : seems to suggest that the principle of kovod habrios allows you to shev
:> : v'al ta'aseh even for a aseh d'orisa.

:> I think this is a case of deOraisa vs deOraisa. Showing another person
:> kavod isn't derabbanan. Even if it was left to Chazal to spell out how
:> to balance the two dinim in specific cases.

: What is the halachic basis ie source text for kovod habrios...

I would think proof is from Bereishis 1, but it seems we misunderstood
the gemara.

Rav bar Sheva and the Chakhamim of EY reject the notion that the heter
there is kavod haberios. The gemara's masqanah is that (barring a spcific
derashah) kavod haberios only overrides a deOraisa besheiv ve'al taaseh.

Which would seem to indicate that either
1- Kavod haBerios is deOraisa, but not as high of a priority as to
   justify a qum va'asei. Or,
2- Laws protecting Kavod haBerios are gezeiros. (Which by RYS's rules, as
   I understood them, would require that there is a deOraisa which the
   kavod haberios legislation is protecting from violation. Ie back to
   #1.)

...
:> Pruzbul circumvents shemittah derabbanan.

: Only according to Abaye.  According to Rava it would seem it would even
: circumvent shemittah d'orisa (not that that necessarily means we have
: shemittah d'orisa, but that is not how it works).

But because of hefqer BD -- IOW, the money really isn't moving because
shemittah no longer exempts the loan, but because BD artificially move
it themselves.

There is a machloqes Rashi and Tosafos as to whether Rava is replacing
Abayei's answer, as you assume, or is adding to it. IOW, according to
Tosafos, Rava invokes HBDH to override "gadol mimenu", not the deOraisa.

: > This requires believing that mishum eivah means very different things
: > in different contexts. I doubt mishum eivah between spouses, from parent
: > to child, or between two Jews is about an expectation that things would
: > get homocidal. And doing business beyom eideihem mishum eivah -- is that
: > really about piquach nefesh?
: 
: No, I don't believe that any of these relate to pikuach nefesh.
: 
: But you have to get back to basic principles.  A rabbinic enactment in any
: form or fashion cannot simply allow you to violate a lo ta'aseh of the
: Torah, and certainly not one of shabbas....

Which is the second assumption that something is derabbanan. (Kavod
haberios and now mishum eivah.) Perhaps neither is, veharaayah, it allows
the violation of Shabbos bequm vaasei even though we know from its other
usages that "mishum eivah" doesn't refer to piquach nefesh or another
already-known matir.

I'm arguing that preserving human dignity and avoiding enmity are both
chiyuvim deOraisa. (At least there is a consistent trend emerging to
my madness.)

Tir'u baTov!
-Micha

-- 
Micha Berger             It's nice to be smart,
micha at aishdas.org        but it's smarter to be nice.
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