Wednesday, April 05, 2006

Clarification of Kushya

Concerning the kushya mentioned in April 4th's post:

During a discussion with Nachum I realized that I had not read the halacha carefully. It is significant that the Rambam's case is a renter. When one is renting from a Jew he may not remove the m'zuzot upon leaving; when he is renting from a non-Jew he must. It would seem to follow that if one sold one's house to a fellow Jew it would be permitted to take the m'zuzot.

I have not done extensive research to see if everyone agrees that this halacha only applies in the case of a rental but a quick scan of the Aruch HaShulchan (Siman 291) seems to bear out my contention.

The solution to the kushya mentioned in the previous post must explain this.


Rabbi Joshua Maroof said...

That conclusion is definitely not held by the majority of poskim, and is certainly not the prevalent minhag. Jews who sell their homes to other Jews generally leave the mezuzot and ask to be reimbursed.

The reason why a renter from a non-Jew takes the mezuzot may be practical - we are concerned that the non-Jew might desecrate them if we leave them there. I think this is what the poskim say.

Rabbi Joshua Maroof said...

I am reiterating this piece that I commented on another post, in case you look over here:

One may still argue that a sale is a complete obliteration of dirah - it necessarily involves the uprooting of one state of dirah to enable the establishment of a totally new one. By contrast, the nature of a rental is a continuous dirah by different individuals, a dirah whose particulars regularly change, the dirah is asuya l'hishtanot.

Yehuda said...

Do you think the Rambam agrees with most poskim? The gemara's case is the same one the Rambam uses. I am not convinced the Rambam holds like most poskim. My kushya is on the Rambam not the prevalent minhag. Additionaly, the Rambam does not offer such a reason for removing the m'zuzot (not that it can not be the reason).

Rabbi Joshua Maroof said...

Look at the comments I just added - I am not sure this sidepoint is germane to the essential issue here....

Yehuda said...

I like your distinction between a rental and a sale.

I would like to know if you agree that the Rambam does not hold like most poskim and limits this halacha to the case of a renter (implying that one selling a house to a fellow Jew may remove his m'zuzot)?
Your distinction would seem to solve the problem - the rented bayit is unique because it constantly has the status of a home (ending one's residence would not cause this status to cease since it is asuya l'hishtanot). One could say that the yeshiva of a goy is not considered a dira and so his yeshiva would remove the "home" status.

Yehuda said...

Bye the way, if you have time try taking a look at some of the earlier posts. I am much more interested in hearing your thoughts about those posts.

nachum klafter, MD said...

I do not understand why you are reluctant to accept the shenei dinim here, especially since you now need to posit (agaisnt the prevalent halakha) that the Rambam would restrict this issur to the case of a renter. I do not see why this is a reasonable supposition. The renter is the owner of the property while he operates his lease. You are also forced to to accept the counterintuitive conclusion that a renter is not allowed to remove his mezuza (which he affixed himself) upon termination of his lease, but that an owner who sells the property IS allowed to remove his mezuza.

The fact that a Jew is the new ba'al of the dirah (after a sale or after the termination of a rental lease) is what creates a new issur for removal of the mezuza.

Since the Rambam himself has stated that the chov is chal and the dar and not on the dirah, it is impossible to explain this with one unified concept as R. Maroof would prefer to do. After all, the original dar has completely severed his ba'alus on dirah. It now belongs to another person. The 2nd Dar's mitzvah is what creates the issur.

I agree with Rabbi Maroof that whether someone resides in the home transforms the halakhic status of this cheftza (in the lexicon of the halakha, it is transformed from an "otzar" to a "dirah"), but this transformation does not explain why another Jew's ba'alut would prevent the former renter from removing his mezuza.

Therefore, it appears to me that there is a new halakhic problem created for the former renter by virtue of the 2nd renter being Jewish. After all, whether that renter is Jewish or not Jewish does not change the former renter's connection with the dirah!

The only explanation which makes sense to me is that the former renter (or the former owner) is forbidden, upon termination of his lease, to remove the mezuza becuase that mezuza is fulfilling the the obligation of the owner (or the next renter, or the purchaser, etc.). He is forbidden from sabotaging the kiyum ha-mitzvah of the new ba'al. This may be determined by the principle of kol yisrael arevim zeh la-zeh. I am using the language of "bitul aseh", but I think you understand what I mean.

By the way, I have a sefer on these halachos in the Rambam called Pe'er Ha-Melech. I will see if he comments on this.

Rabbis Maroof and Rapoport--where do you disagree with me. Please enlighten me!

Yehuda said...

Dr. Klafter! I do believe that what you are saying answers the kushya but I do not like it for two reasons. It is not an elegant answer (because you must posit a new din) and the Rambam should have explicitly said there is such an issur.

Additionaly, even if you say that there is a seperate issur from whence does it emerge? You claim it is from the principle of "kol yisrael... - wouldn't it be more elegant to say that it emerges from the very definition of chiyuv m'zuza? Your solution is certainly possible but I don't like it.

Rabbi Maroof is saying that m'zuza is similar to tzitzit - but what is the reason one is not allowed to remove the tzitzit?

Perhaps one is not allowed to remove the m'zuza because it would be a lack in k'viut. If m'zuza was the sort of object that one took with them upon moving out of their house it would give the m'zuza an arai quality. If you subscribe to my reading of the Rambam this would explain why this halakha only applies to a renter - it is the transient quality of the renter which creates the k'viyut problem. Taking down the m'zuza if the house is owned by a non-Jew would not reflect a quality of arai since one is only removing it for practical reasons. The Gemara is on דף קא,ב and דף קב,א.

I still like Rabbi Maroofs answer - there is something intuitive about saying that once one is m'takain something one has no right to remove that tikun.

Nachum Klafter, MD said...

But why does the fact that the owner is not Jewish do away with this kiyum in keviyut. The existence of a chiyuv for another Jew seems to be the critical factor. This must be explained.

Yehuda said...

If you have aim my screen name is YehudaRaven and we can discuss on there.

Yehuda said...

I am saying that because a renter is transient a problem will emerge when he puts up his m'zuza. The chiyuv is to be koveya the m'zuza - if he takes the m'zuzot with him we can not call it a true k'viut - he is relating to the m'zuza as one would relate to a painting on the wall - not a permanent part of the structure of the house but just something to adorn the wall. One is not allowed to hang the m'zuza it must be affixed "תליה במקל--פסולה, שאין זו קביעה. "

Nachum Klafter, MD said...

I have looked around a little bit. I doubt any of this will convince you guys, but it is nevertheless interesting. The Tosfos on ב"מ דף קא ע"ב say "Even though Shemuel stated [Shabbos 22b-merosas ha-sha”s] that one can take [tzitzis] from one garment to another. With regard to mezuza it is forbidden because the mazikin come into a house where there is no mezuza, and when he removes it, it is as though he is injuring thouse who will reside in the house." (my translation—check it.) Clearly the Tosafos feel that it is a שני דינים also, but rather than ביטול עשה (as I suggested) the problem is מזיקין. However, in logic this is very similar to my solution.

Therefore, according this Tosafos, I think that Rabbi Maroof’s dimyon to tzitzis is not applicable.

In addition, the fact that the Rambam brings this ruling in the same halakha as הכל חייבין means, as I understand it, that he brought the case of משכיר in order to illustrate to what extent חובת הדר applies, and not because he wishes to separate it from a purchase. It would follow, logically, that a purchase should also apply.

There are a number of interesting opinions listed in the footnotes of the Artscroll Bava Metzia 102a1, including the Ya’avetz and the Ritva: The Yaavetz says that they must be removed by the renter in the case of a נכרי owner lest the נכרי desecrate them. This would seem to imply a totally extraneous reason, and would mean that otherwise, from the point of view of קביעת מזוזה, it should be left affixed. Rather, it is a separate חיוב in קדושת מזוזה that they need to be protected. This would, if I understand Rabbi Maroof’s solution, be more in accordance with what he stated, and he would no longer be forced to distinguish between renter/owner/Jew, non-Jew, etc. However, I am not entirely sure if I understand Rabbi Maroof’s חידוש. Ya’avetz definitely does not accord with the טור, ב"ח, or ב"י, because he rules that that this obligation to remove it for the sake of protection from desecration applies even when another Jew will take possession of the דירה if it is owned by a נכרי.

The Ritva states that removing the מזוזה will lead to a loss of holiness because the שכינה will depart when the מזוזה is there. This would, as far as I can understand, imply that the Ritva holds there is a separate דין in not causing a diminishment of שכינה. I wonder if this would be שני דינים or if in fact the Ritva is saying that it is a מצות הדירה and not a מצות הדר. I don’t have a Ritva to look inside.

Nachum Klafter, MD said...

Rabbi Maroof, where art thou?

Yehuda said...

The Ritva could not be saying it is a chovat haDira - this would be a direct contradiction of the gemara. The Ritva and Tosafot both follow from the ma'aseh in the Gemara which says that a renter who took his m'zuzas lost his wife and children. All agree it is not proper to remove the m'zuzot - the question is what principle causes this pohibition.

This would certainly be in line with Rabbi Maroof's idea that the affixing of the m'zuza imparts a certain status to the bayit which should not be violated.

As I said before, once you are m'takein something (causing hashra'at sh'china as per the Ritva) it is not proper to remove that tikkun. Affixing a m'zuza is a chovat haDar but it imparts a certain perfection in the bayit which may not be violated. Violating this status would demonstrate one's absolute diregard for the idea of m'zuza - how chachmat hashem must be the dominating principle of the bayit - this should result in a mida k'neged mida removal of hashgacha from this individual (his house is destroyed - wife, children). This is perfectly in line with the Ritva and the Tosafot.

Nachum Klafter, MD said...

The braisah does not say it is chovat ha dar. The Rambam does. The gemara simply says "Al ha socher" and the this is the Rambam's interpretation of it.

Nachum Klafter, MD said...

Again, the tikkun/keviyus theory fails to explain how ownership by a נכרי undoes this obligation.

The Tosfos are definitely not consistent with R. Maroof. They specifically say it is not analagous to tzitzis because there is a separate problem--letting in mazikim.

Yehuda said...

You are right, the last k'viut theory that I proposed might require a second din to explain why the m'zuza is removed before a non-Jew moves in. An alternative is that one removes the m'zuza because an AKUM is not chayav in m'zuza - it has nothing to do with the fear of desecration. I hope to make a post soon where a will try and delimit what the issues are in order that we can more effectively meet issue. If you have time try and read some of my early posts - I would love to get some input on them.

Rabbi Joshua Maroof said...

I had no idea this discussion was still progressing...When did these exchanges take place?

I would like some more time to mull over the issues before posting any further comments.