Oneg Mezeorah Hagadol
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TO SHAVE OR NOT TO SHAVERabbi Shlomo OdzeAssociate Rabbi, South Hampstead Synagogue
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OnegShabbosNorth West London's Weekly Torah and Opinion Sheets
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16th April 2016 "
And it shall be, on the seventh day, that he shall shave off all his hair: [that of] his head, his beard (Vayikra 14:9)
The Gemara in Yevamos 5a learns the principle of aseh docheh lo saaseh a positive mitzva pushes off a negative Mitzvah - from this posuk, hence the positive mitzva of a metzora shaving his beard overrides the negative mitzva of nor shall they shave the edge of their beard (Vayikra 21:5).
In light of this, the Rambam in his commentary of the mishna (Meseches Negaim) teaches an incredible chiddush. The Rambam asks why the process of purification of a metzora entailing letting free a live bird and shaving, does not apply today? Although we do not have korbanos today we do find that the inability to bring a korban does stop the process of setting one bird free and shaving.
The Rambam answers that since a metzora is only permitted to shave his beard because of aseh docheh lo saaseh he would not be able to do it today as he cannot bring a korban afterwards to atone (Vayikra 14:10). The process is therefore left incomplete and we only apply the principle of aseh docheh lo saaseh to a positive mitzvah which can be completed fully.
According to the Rambam therefore, although bringing a korban is a separate mitzvah to shaving, and in the times of the beis hamikdash not being able to bring a korban would not stop a person shaving, nevertheless since the Korban is considered the completion of the shaving process therefore shaving on its own could not be done today as it would not override the Mitzva of not shaving the edge of the beard due to the mitzva being incomplete.
This raises the following question. With regards to tzitzis there is a machlokes (Menachos 37b) as to whether the four corners are considered one mitzva or each of the four are a mitzva in their own right. The difference would be regarding shaatnez in tzitzis, which are theoretically permitted. If all four are one mitzva, should you be missing strings on one corner your mitzva is incomplete and you would not be allowed to have shaatnez in the garment. If however, each corner is a separate mitzva then should you be missing strings on one corner you are still fulfilling the mitzva on the other corners and therefore you can wear the garment containing shaatnez, even if your mitzva of tzitzis is not complete.
This does not seem to fit in with the Rambam who opined that we only apply the principle of aseh docheh lo saaseh to a positive mitzva which can be completed fully. In the case of tzitzis we see, at least according to one opinion, that we do apply the principle of aseh docheh lo saaseh to a positive Mitzvah even if is NOT completed fully.
One answer to this is that the Rambam was referring to the bringing of korbanos today in which there is no possibility at all of bring them until Moshiach comes. In that case the Rambam holds that we only apply the principle of aseh docheh lo saaseh to a positive mitzva which only can be completed fully right away, and he has no possibility of that at this stage. With regard to tzitzis however, the fact that they are incomplete is purely a temporary matter which can, and no doubt will be, repaired right away at the earliest opportunity. Therefore we would still apply the principle of aseh docheh lo saaseh and he would be allowed to wear this tzitzis of shaatnez in the meantime (according to the opinion that each corner is a separate mitzva).
May we be zoche to the coming of Moshiach when we will be able to once again bring korbonos.
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1. What lies behind the name tzoraas?
NO FONE FURSDAY!Not touching your phone throughout Shacharis on Thursday mornings.Can you handheld that? 0800-613-HANDLE-IT?
ISKA A QUISTCLOSE TRUST?Dayan Yehonoson Hoolnewly appointed to the Federation Beis Din
Generally, funds advanced as a loan become the property of the borrower. The borrowers other creditors have equal rights to claim their debts from these funds as has the lender of these funds.
However, English law recognises a unique situation in which one who advances funds to a borrower has priority rights to these funds over other creditors. A Quistclose Trust is a mechanism by which a lender can lend money to a company or individual, with a stipulation that the funds be used for a specific purpose. This gives certain rights to the lender over the funds; in particular, if the borrower becomes insolvent before it has used the funds as instructed, then the lender has first claim on these funds, which are thus protected from being taken by the borrowers other creditors.
In a landmark case, Barclays Bank Ltd. v Quistclose Investments Ltd (1970), the House of Lords considered a case in which Quistclose (Q), a finance company, had lent money to Rolls Razor Ltd (RR), a company that was teetering on the brink of insolvency, for the express purpose of paying a promised dividend to RRs shareholders. The loan moneys were placed in a separate account at Barclays Bank. Soon after, RR did indeed become insolvent. Barclays Bank, which happened to be RRs principle secured creditor, naturally assumed that its claim would take priority over Qs unsecured loan, but Q claimed a proprietary right in the funds. The House of Lords decided in favour of Q, ruling that these funds were held in trust for Q and thus Q would have priority over other creditors in recovering them.
Although the ruling has been accepted as precedent, there is much debate amongst jurists and academics as to how to explain the mechanism of the
Quistclose trust in line with established legal trust concepts. Amongst the views put forward, some argue that the funds are considered to be held in a secondary trust which arises because the primary express trust was incapable of being carried out once the borrower became insolvent. In other words, the funds were in fact a loan, but once the condition for the loan cannot be fulfilled, they revert back to the ownership of the lender, and the borrower merely holds them on trust for the lender. Others explain that the beneficial interest remains in the lender throughout, with the borrower undertaking to apply it to the lenders designated purpose, in accordance with a mandate that the lender can revoke if that purpose is frustrated. Put simply, in this view the funds never really leave the possession of the lender until the terms of the loan are carried out and the funds are put by the borrower to the use stipulated.
Halachic Precedent Lehavdil, in halachah there is precedent for a Quistclose-like situation. As
shall be seen, the concept of Iska includes a loan that can nonetheless only be used for a specific purpose, and there is an extensive discussion in the poskim as to whether the lender has priority to these funds over other creditors.
IskaIt is forbidden for a Jew to pay interest on a loan to another Jew, or to
receive interest on a loan from a Jew. In order to facilitate investment, the Gemora discusses the Iska arrangement, in which a financier gives over a sum of money to an entrepreneur for the purpose of investment. The financier
wants a share of the profits, but if the funds were given as a straightforward loan any payment beyond the repayment of the principal would be interest. The way around this was to declare the funds as being half a pikadon (bailment
i.e. the funds still belong to the financier) and the other half being a milveh (loan). The entrepreneur/recipient must invest the funds in an appropriate investment project. Half of the profits would go to the financier, because half of the principle remained his, with the other half of the profits going to the recipient, as half the funds belonged to him, seeing as he had borrowed them. (The recipient received an additional payment for the service he provided in investing the financiers half of the funds on his behalf, because otherwise this service itself would be considered an interest payment on the loan half.)
The Gemora makes clear though, that although half the funds are considered a loan, the recipient may not use these funds for whatever he wants (to drink beer, in the Gemoras example). They must be applied for an investment together with the pikadon half. Splitting the funds into two would limit the investment opportunities, whereas the larger, combined capital will facilitate wider investment prospects, and thus the Gemora rules that the recipient must commit even the loan half to investment opportunities and not simply use