Copyrights

3 02 2012

Based on a Naaleh.com shiur by Dayan Shlomo Cohen  

copyrights According to Jewish law one cannot buy a davar shelo ba l’olam (something that doesn’t exist or is intangible) because there is no gemirat daat (final comittment). If there’s no gemirat daat, one cannot make a kinyan (acquisition).

You can’t sell something that doesn’t exist yet because the buyer doesn’t know what he will get.

For example, if a deal is made on next year’s crops, the buyer can renege on it. However, once the supplier provides the crops, the transaction is valid because then there is gemirat daat and the kinyan has been finalized. If you buy a field together with the crops of the coming year, the sale is valid because you are acquiring the land that will produce next year’s crop.

Similarly, the poskim discuss a case of a cow and its unborn calf. The seller sold the cow along with the calf. By the time it was born, prices had changed and the seller realized he had sold it too cheaply. If there was a kinyan while the calf was in his mother, he can’t ask for more money. The price originally agreed upon is binding. However, if there wasn’t a kinyan, since it was a davar shelo ba l’olam, the seller can ask for a higher price.

Selling items that are still in a supplier’s warehouse is a problem in halacha because the seller doesn’t own it yet. There is no gemirat daat. Therefore, the deal is invalid and both sides can demand a different price later on. If the seller personally obligated himself to supply the items, he must do so when they comes into his possession.

Halacha dictates that custom can create gemirat daat. The buyer trusts the seller, even though he can’t supply the item right away. Since deals involving future commodities are made all the time, there is gemirat daat and the kinyan is binding.

According to halacha, if you buy a piece of land, the property belongs to you including its airspace above until the heavens. For example, if you bought a courtyard and someone on the third floor above your property wants to build, you may stop him. However, Jewish law teaches that where one person stands to gain and the other one doesn’t lose, “Kofin al middot sedom,” beit din can force him to allow the person to build. Where there is even a small loss, this principle does not apply and the person who wants to build has to pay for the building rights.

Although the Shulchan Aruch rules that copyrights and trademarks are intangible, the majority of poskim today maintain that you can own a copyright. In certain cases, a person who steals a copyright or trademark is considered a thief. Since trademarks and copyrights are commonly bought and sold, any deal involving these things is valid.

When you know what the assets are but you don’t know how much there are, the transaction is valid. If it turns out that there was much less than the buyer anticipated, he can make a claim that he was overcharged. If it turns out to be much more, the seller can claim he undercharged.

The halacha may seem that one who receives a mistaken gift from an inheritance can keep it, because you can only acquire what you know is there. However, with regards to an inheritance, you don’t need to make a kinyan. The moment the father dies, there’s an automatic transfer of ownership to the sons. Therefore, if a son gives someone a gift from an inheritance, not knowing its true valuable, it must be returned.





Jewish Calendar II #16-Mehadrin Min Hamehadrin

19 12 2011
Based on a Naaleh.com shiur by Rabbi Hershel Reichman

Chanukah is a unique holiday in that the Gemara delineates two extra levels of hiddur mitzvah (enhancing the mitzva) when lighting the candles. The basic mitzva is for the head of the household to light one candle each night for the whole family. However, there is a level of mehadrin where each family member lights a light every night. In mehadrin min hamehadrin each family member lights the corresponding number of candles for that night.

The Beit Yosef discusses a question whether a person who made a blessing on the wrong number of candles must make another blessing when he remembers to light the additional candle(s). He answers that if there was a significant break (approx. 1-2 hours) after the first lighting, one would make another blessing. This is surprising, because in normative Jewish law one doesn’t repeat a blessing on a hiddur mitzva. From this we learn that the mehadrin factor inherent in neirot Chanukah is unique in that it is related to maaseh hamitzva (performance of the mitzva). While there is great importance attached to beautifying a mitzva, such as making a blessing on a fine etrog or tallit, it is only related to mitzva objects with which the person fulfills the fundamental mitzva regardless if the item is beautiful. Therefore, no further blessing is recited. However, when one adds more Chanukah candles, the performance of the mitzva is radically enhanced, it’s intrinsic to the mitzva. It’s not just lighting the candles, but also pirsumei nisa – publicizing the miracle. Therefore, another blessing is recited.

Similarly, the poskim explain that although the basic mitzva of ner ish u’baito, (the father lighting for the household) has already been fulfilled, other family members can still make their own blessing because they are adding to the fundamental mitzva, which is pirsumei nisa.

Can a child who has reached the age of chinuch and is obligated in Rabbinic mitzvot, be motzi (intend to include) an adult with a mitzva d’rabanan such as megilah or neirot Chanukah? The Shulchan Aruch rules that a child cannot be motzi megilah but he could be motzi neirot Chanukah. Rav Soloveitchik explains that megilah is a chiyuv gavra – an adult obligation. Neirot Chanukah is a chiyuv bayit – an obligation on the household. It’s not a transfer from one person to the next. Since a child has an obligation he can automatically be motzi the household.

There’s an old custom to sing Haneirot Halalu as the Chanukah lights are lit. This seems like a hefsek (interruption in the performance of the mitzva). The reason it is not is because it is part of publicizing the miracle.





Kohelet: Solving The Complexities of Life

12 10 2011

Based on a Naaleh.com shiur by Rebbetzin Tziporah Heller

Kohelet: Perek 10: Solving The Complexities of Life #11The sages tell us that there are three forces that take a person out of reality: jealousy, desire, and honor.

Jealousy is the illusion that if someone else has more, than I have correspondingly less. In spirituality there are no limitations. We are given exactly what we need to achieve in life. We can be our absolute maximum self regardless of what anyone else has.

Lack of control is the voice of desire. Rav Dessler teaches that unlike jealousy, desire can’t be eliminated because it has a physical and emotional base. Imagery can help. At the moment when desires arises within you, try to imagine how you would appear out of control or, conversely, attempt to picture yourself in control and feel good about it.

Honor is connected to the body. Needing appreciation and validation on the deepest level, means not trusting who you are without external acknowledgement. If you need people’s validation then you are a prisoner to other people on the basis of what they tell you.

Honor takes a person out of intellectual reality, desire lifts him out of physical reality, and jealousy forces him out of emotional reality. The evil inclination then goes right into that empty space and does his work. The heart of a wise person leads him to the good path, the right side, which is stronger, while the desire of the fool takes him to the left side, the road less defined.

Right is chesed (kindness) and left is gevurah (justice). Chesed is the most predominant of the spiritual attributes and gevurah is the most corruptible. A person’s heart can steer him towards exploring things and feelings with the intent of wanting to bring goodness into the world. It can also lead him in the direction of defensiveness and restraint and not wanting to give anything at all. It’s better to trust the side of you that wants to give and make things good, than to trust the part of you that demands justice, because the desire for justice is easily corruptible.

The Baal Hatanya teaches that the heart has two ventricles. While the right side is empty, the left side is full of blood. The right side is the good side of the person, the part that gives itself over to Hashem. The left side is the animal side, the part that’s driven to pursue its goals. The fool doesn’t know the difference between right and left. He will do whatever he wants to do without thinking. His heart and emotions influence his actions.





Rosh Hashana & Yom Kippur Davening: True Atonement

6 10 2011

Based on a Naaleh.com shiur by  Rabbi Michael Taubes

True Atonement In the Torah, Yom Kippur is referred to in the plural form as Yom Hakippurim. Rav Soloveitchik explains that atonement is associated with sacrifices, which were a major part of the Yom Kippur service. The Rambam writes that since today there are no sacrifices, teshuva atones for all of our sins. Referring to Yom Kippur in the singular might lead us to think that we cannot attain atonement today because we don’t have korbanot. Therefore, it is referred to as Yom Hakippurim

Every person approaches teshuva with his particular background. There’s repenting from fear and repenting from love. A person can do teshuva while he is still young or when he reaches old age. Therefore we say, Yom Hakippurim to allude to the many different types of teshuva and the varied levels of atonement. Another reason for the plural form is that Yom Hakippurim also applies to atonement for the dead and the living. In fact, the practice to recite Yizkor was originally associated with Yom Kippur. The dead, whose judgment is ongoing, achieve atonement on Yom Kippur too.

In the Torah, vidui is discussed in the context of korbanot. It is not mentioned in relation to Yom Kippur. During the times of the beit hamikdash, the procedure a person underwent to purify himself literally transformed him into a new being. This is the essence of Yom Kippur. A Jew must become a different person to the point where he can say to Hashem, “The decree you placed upon me doesn’t apply anymore.” This encapsulates the concepts of teshuva and tahara (purification). The idea of mechila (forgiveness) has its roots in monetary law where a person can forgive a liability. Similarly, we ask Hashem to overlook our debt of sin. When a person purifies himself it’s as though his sins are completely erased. In the Yom Kippur prayers, we say, “Ki bayom hazeh yichaper aleichem l’taher etchem.” The essence of Yom Kippur is purification and the power of the day itself brings atonement, even without korbonot. According to one opinion the atonement comes even without teshuva. That is why there is such joy on Yom Kippur, and especially at its culmination.

Our sages tell us that when a person does teshuva out of love, “z’donot naasu lo k’zechuyot,” his intentional sins becomes merits. How do we understand this?

We become a different being when we repent. The same energy and creativity that we invested in sin is now put into mitzvot

 

Selichot are prayers of forgiveness. The central motif is the recitation of the thirteen attributes, which appears numerous times throughout Neila. If we want to be the beneficiaries of Hashem‘s chesed we must live up to these attributes. We don’t recite the full vidui during Neila. This is because we’ve already confessed our specific sins throughout the day. Yom Kippur is supposed to lead us to something beyond this, to a place where our focus turns to our central mission in life and our true goals.





Rejuvenating Our Bond

27 09 2011

Based on a Naaleh.com shiur by Rabbi Moshe Weinberger

Rejuvevating Our Bond The first Rosh Hashana at the beginning of creation was different than all future Rosh Hashanas. The presence of Hashem descended upon Adam without any effort. It wasn’t a matter of avoda, working to achieve an awareness of Him. Rather it was a complete itaruta dl’eleh, an arousal from above.

In the Rosh Hashana davening we say, “Zikaron l’yom rishon, a remembrance of the first day.” In order to reveal Hashem’s kingship upon us we must remember the brit. The brit is the immutable bond between Hashem and the Jewish people that can never be obliterated. This requires effort, an itaruta dl’tata, an awakening from below. This awakening is accomplished through the shofar. The shofar is an aspect of the highest teshuva. It is like a cry, a yearning from the depths of the heart, something very profound and powerful and impossible to contain in words.

The sages divided the service of Rosh Hashana into three parts: Malchiyot, Zichronot, and Shofrot. These are not three independent aspects but one unit with interdependent parts. Why does the memory of the brit depend on the shofar? Rosh Hashana is the beginning. On that day Adam was created and he accepted malchut Hashem (kingship). When we say, “Zikaron l’yom rishon” we connect once again to the memory of the beginning of the revelation of Hashem. The Rambam says the avoda of teshuva is shofar. It signals to us, “Uru yesheinim mishnaschem! Awaken from your sleep, you slumberers!” The brit, the covenant between Hashem and knesset Yisrael is hovering above us waiting to be rejuvenated once again.

The Zohar teaches that there are two levels of repentance, a lower teshuva and a higher teshuva. The lower teshuva is meant to return the soul to its state of purity before sin. The higher teshuva leads the soul back to the level of d’veikut, attachment to Hashem that it had before it became connected to the body. Shofar is an aspect of this highest teshuva. It is the return of the soul to the root of its existence. It could be that the Baal Hatanya uses the term teshuva ilohe to mean a higher level of teshuva where the person is so deeply affected by his distance from Hashem that it touches the deepest point of his heart and he is overcome by uncontrolled weeping and brokenness.

The Rebbe Maharash retold a parable from the Baal Shem Tov about a king who sent his son away to a faraway land to learn the ways of the world. After many years the prince returned to his father’s kingdom, bereft of everything he had and clad in tattered clothing. When he arrived, the people did not recognize him. They taunted him and beat him until he reached the palace courtyard and a cry of pain escaped from deep inside of him. The king recognized his son’s voice and ran out to embrace him. Similarly, Hashem decreed that the soul should descend into the world, to attain its reward. Lost in the maelstrom of physicality it moves far away and forgets that it was once connected to Hashem. The voice of the shofar, the cry from the depths of the heart, contains all the regrets and past mistakes of the soul. It expresses the profound pain of the Jewish people and how we have distanced ourselves and yearn to return. The call of the shofar, awakens Hashem’s love for us and we too are aroused to come back once again to His warm embrace.





Shabbat Shuva: Hashem’s Ways Are Straight #4

27 09 2011

Based on a Naaleh.com shiur  byMrs. Shira Smiles  

Shabbat Shuva: Hashem's Ways Are Straight #4 The haftorah of Shabbat Shuva depicts the era of the redemption as a time of tremendous closeness and connection between Hashem and the Jewish people. The Navi tells us, “Those who return will sit in Hashem‘s shadow.” The Radak explains that the Jews will return to the land of Israel where Hashem’s presence rests. Just as bread now nourishes a person physically, when Mashiach comes mitzvot will be a basic aspect of our spiritual existence. Wheat, which is sown annually, signifies Elul. It’s a time to replant and reinvest in our relationship with Hashem. But when Mashiach comes, there will be a flourishing bond like the grapevine, which blossoms from year to year.

The haftorah compares Hashem to a tree whose head is bent down to its roots. Hashem who is up in the heavens descends to be with us. If we listen, we will eat of the fruit of the land; if we rebel we will eat the fruit of the sword. It will be according to our deeds. Sometimes we don’t see the results of our actions right away but they eventually catch up with us. The basic foundation of hashgacha pratit (Divine providence)is recognizing that everything we do is important and we are accountable for everything. The Mishna in Avot tells us “Da ma l’maala mimcha.” The Nefesh Hachayim explains, know that what comes from above, mimcha, is a result of your actions.

The prophet Hoshea tells us, “The ways of Hashem are straight, the righteous will walk along these ways and the sinners will stumble.” Hashem’s ways are correct. He knows what is in each person’s heart. If we have a problem understanding His ways, it is due to our limitations. The judgment of Hashem is measured out exactly. Yosef was meant to experience the torment of slavery, but he didn’t deserve to suffer too much along the way. Therefore Hashem made the Arab dealers carry sweet smelling spices in the wagon that carried him down to Egypt. Sometimes Hashem will punish a righteous person because he wants to give him reward in the next world. If we can understand that the trials Hashem gives us is for our benefit, then all suffering falls away. Our challenge is to find Hashem in every difficult situation.

Shabbat Shuva is a time of judgment. When Hashem‘s conduct is so exact, we should repent.

Teshuva is embracing the essence of being a servant of Hashem. It is understanding what is important in life and pursuing it. The shleimut (perfection)in a mitzva depends on the intention behind it. The same action can be a sin or a mitzva. These weeks are an opportune time to work on fulfilling Torah and mitzvot with thought and feeling.

All that we encounter in this world is a message for us to learn from. Whatever we read, see, hear, or experience is Hashem’s way of teaching us something. Sinners choose to focus on the negativity in this world. They are unable to face the reality of the truth. Hashem doesn’t put a stumbling block in front of us. Our negative choices create it. The tzaddik and rasha both have the same opportunities and abilities. What makes one person grow while another falls? Our choices. Rav Dessler writes that there is no standing still in Judaism, a person is either going up or down. A beinoni is one who is undecided. Sometimes he’ll take the route of growth and sometimes the route of sin. But there’s no such thing as being complacent. Hashem gives us so many opportunities in life. The question is how we will respond. We must focus on the vision of who we can be and what we can build. And we must always keep in mind, “Yesharim darkei Hashem. The ways of Hashem are straight.”

This Rosh Hashana let us pray for si’yata d’shmaya to make Hashem a part of who and what we are and may we merit to be inscribed for a shana tavoh u’metukah, a sweet new year.





Themes of Rosh Hashana

26 09 2011

Based on a Naaleh.com shiur by Rabbi Michael Taubes

Themes of Rosh Hashana #1 The Gemara writes that the books of life and death are open before Hashem on Rosh Hashana. There’s a certain tension in the air in keeping with the awesomeness of the day. Hallel is omitted, and the prayers are unusually lengthy. Nonetheless, there’s an obligation to rejoice on Rosh Hashana. Although it is the yom hadin (day of judgment) it is also called Yom Teruah (day of the shofar blast). Rav Soloveitchick explains that teruah can be translated to mean friendship from the root word reut. Rosh Hashana is the day when we rekindle our loving relationship with Hashem.

In Shemone Esrei of Rosh Hashana, we say, “U’vchen ten pachdecha. Let your fear rest upon your creations.” This seems puzzling. Fear doesn’t engender positive sentiments. Rav Soloveitchik clarifies that fear of Hashem is healthy. But there’s another kind of fear. When Rosh Hashana comes we begin to introspect, thinking perhaps we were living life with the wrong assumption and we ask Hashem to reveal to us the truth. If we would stop and ask ourselves before anything we do, “What would Hashem think of this?” we would act differently. U’vchen ten pachdecha is the recognition that all the things we’ve done are recorded and we must account for them.

There is a custom to say chapter 24 in Tehilim at the end of Maariv on Rosh Hashana. The psalm speaks about the kingship of Hashem. Rav Soloveitchik says there are two ways a person can recognize Hashem. It can happen by force, through tragedy. But it can also come through joy or intellectual understanding. Sometimes the gate to let Hashem in moves involuntarily, and other times it happens because the gates themselves have opened to let Him in. This is the challenge of Rosh Hashana. People think they can’t change, but it isn’t true. It’s a matter of making the effort. Our eye must be turned towards the future, towards perfecting ourselves and becoming better Jews.

We say in L’dovid Hashem, “Achat sha’alti…shivti b’veit Hashem. I have one request… to sit in the house of Hashem.” King David asks Hashem to dwell in His house, But then he says, “U’levaker b’heichalo. Let me visit His palace.” If he is asking to dwell permanently with Hashem, why does he then ask to visit? King David desired both. He wanted to always be with Hashem, but with the excitement and freshness of a visitor.

May we merit this Rosh Hashana to renew our connection with our Creator with anticipation and joy.