[Avodah] klalei psak

[Micha Berger]

On Wed, Feb 21, 2024 at 04:29:47PM +0200, Joel Rich via Avodah wrote:
>> Rav Asher Weiss-The Rules of Rendering a Halachic Decision
>> https://torahanytime.com/lectures/283345

On Fri, 8 Mar 2024 13:31:30 -0500 I had a chance to listen and commented:
...
> Talmud Reclaimed, by R Shmuli Phillips (who is easily reachable on Facebook),
> gave a different explanation of the Sepharadi position. They would take the
> masqanah from the primary sugya on a topic. And if that means they ruled in
> ways the Baalei Tosafos would deem inconsistent, so be it.

Well, it seems the AhS does not agree that this is how the Rambam worked.

See YD 266:21, on the topic of a baby born at 8 months gestation. (He
refers you to his EhE 156:5-13, but I saw the YD when AhS Yomi got there
on Apr 22nd, and have had this post on my to-do list since.)

Toefta Shabbos (ch. 16) has what looks like a machloqes about how to
deretmine a ben shemonah:
Rebbe: the signs are that his hair and nails aren't finished. (Otherwise,
it could be a 7-month baby born late, not a 9- month born preemie.)
Rabban Shimon ben Gamliel: anyone who lives 30 days is not a neifel.

The AhS understands the Rambam as holding this is not a machloqes, but
rather either-or. If the baby has fully formed hair and nails or lives
30 days, it was a fully viable 7-month baby.

Whereas the Chakhamim say any baby not born to term is not born to term,
and neither sign matters.

And he says that the Rambam holds like the union of Rebbe and
RSBG. Because Shemuel (Shabbos 136a) holds like RSBG.

The main sugya, the Tosefta, would be understood by default to follow
the Chakhamim over either daas yachid.

So the AhS has the Rambam giving a non-trivial peshat in the main sugya
in the Tosefta because of a tangential comment in Mes' Shabbos.

Tir'u baTov!
-Micha

-- 
Micha Berger                 Today is the 19th day, which is
http://www.aishdas.org/asp   2 weeks and 5 days in/toward the omer.
Author: Widen Your Tent      Hod sheb'Tifferes: When does harmony promote
- https://amzn.to/2JRxnDF                       withdrawal and submission?