[Avodah] Eishes Yefas Toar and Pruzbul

[Micha Berger]

I got to the Arukh haShulchan's discussion of Chazal changing the entire
definition of qinyan. MideOraisa, paying would be the qinyan. But Chazal
were afraid that sellers wouldn't properly safeguard the item between
payment and handing it over to the buyer. After all, any loss or damage
is the buyers, ownership was already transfered. So, chazal made various
qinyanim that demonstrate the buyer taking the item.

The Torah gives the halakhah. Chazal realize that given the low state of
the people around them, the halakhah would have cons that outweigh the
pros. So, they change it.

Reminds me of pruzbul or heter isqa, cases where in order to help
someone who needs a loan get one, we allow suboptimal loan arrangements.

In each case, a different validation for doing so:
- Qinyan in general allows custom and agreement by both parties override
the default law.

- Similarly heter isqa was always technically allowed; our rabbanim just
standardized a means of utilizing this alternative financial arrangement.

- Pruzbul is violating shemittah derabbanan. So, while the gemara requires
the motive of helpoing the poor get loans to even violate the ke'ein
deOraisa, tHillel didn't rewrite Torah.

But my point is, in all three cases the Torah addresses people on a higher
plane than the people Chazal encountered in reality. The deOraisa didn't
accomodate human frailty. (And in the case of shemitas kesafim, if the
deOraisa applied, halakhah still wouldn't have an accomodation.)

And yet, eishes yefas Torah -- lo dibera Torah ela keneged YhR. Something
TSBP (and natural morality) tells us is immoral is not prohibited by
the din. Human limitations are taken into account, and the Torah instead
tries to channel the urge and limit the damage.

So why the difference in approach? Why wasn't ribis permitted keneged YhR,
or lending past shemittah, or qinyan deOraisa be when the buyer takes
posession of the merchandise, rather than the seller takes the money?
Again, all for the sake of keneged YhR?

Tir'u baTov!
-Micha

-- 
Micha Berger             What we do for ourselves dies with us.
micha at aishdas.org        What we do for others and the world,
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