Asking a Shaila (a question)

This one is for the #JewCrew.

Let’s say there is a brother and sister who have a halachic shaila about family matters they need to ask of a rav. The sister follows one rav, the brother another. He asks his rav, she asks hers, and the answers are different. Who do they go according to?

EDITED TO ADD – this is something that they have to do together, not separately.

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  1. Preferably, they can each follow their own rav, and let each other to his or her own.

    But if not, then they must both follow the lowest common denominator, i.e. the more lenient opinion. The individual with the more lenient rabbi has a perfect entitled to follow his or her rav, and he or she shouldn’t have to suffer because the other individual has a stricter rav. The one with the stricter rav, it’s his or her own problem that his or her own rabbi is more strict, and he or she cannot expect the sibling to help bear the burden. If you want to accept a humra, fine, but you cannot expect others to join you.

    • mekubal says:

      Interesting hypotheses but not at all the halacha.

      • How do you figure? According to the halakhah, one cannot impose a humra on someone else.

        • Of course, if it is possible to work out a compromise or a consensus – whether by going to a third rabbi, or having the two rabbis discuss the issue together, or what have you – then this is preferable. But if no compromise can be made, then it is clear as day that the person with the more lenient rabbi has no obligation to follow the stricter rabbi.

        • mekubal says:

          First you don’t know that it is a humra, as, which is often the case with shailot, the way in which the specific question is termed can change the outcome of the question.

          Second, nor do you know that the “stricter” Rav is following a Humra, as opposed to the “lenient” Rav following an obscure heter.

          Finally it is not the way that such issues are supposed be dealt with as laid out in the Shulhan Arukh in Hoshen Mishpat.

          Your hypotheses was based on a series of assumptions, and without any actual halachic backing.

          • Well, I was assuming ceteris paribus, all other things being equal. But if one rabbi is following an obscure heter, or if the other one was following an obscure humra, then this complicates matters. I was assuming that all things are equal, that both rabbis have equal merit for their cases. In that case, each sibling can follow his or her own rabbi without regard for the other.

            Your analogy to Hoshen Mishpat is flawed. The Shulhan Arukh is assuming two things:
            (1) A definite stable community with a minhag ha-maqom. That is, the community is an organic self-contained entity with its own customs and mores, and the desire for social cohesion and uniformity is legally enforced.
            (2) The two parties went to one single beit din and agreed in advance that they’d both follow the ruling, whether strict or lenient.

            But there, those two elements are absent. I doubt the two siblings are living in a shtetl, and so unless they are living on a yishuv in the West Bank with one single community rabbi, the first assumption of the Shulhan Arukh is not valid here. It definitely appears that each sibling asked his or her own personal rabbi separately, which voids the second assumption of the Shulhan Arukh. So the Shulhan Arukh is not valid here, unless there is another ruling therein of which I am not aware. But as far as I know, your analogy to Hoshen Mishpat is not valid here.

          • mekubal says:

            Actually no, Hoshen Mishpat does not assume any of those things. It deals with people from different cities and even countries. Different minhagim. Different Rabbanim and different Heterim. Hence the issue of when and when not a “kim li” can be used.

          • Yes, but when it deals with different people and different countries, there is usually a case of one person having relocated and dealing with the other person. For example, if you move from one locale to another, you are obligated to accept the minhagim of the new locale. If you are only traveling, then you must accept the new locale’s minhagim in public and you may keep your own minhagim only in private.

          • mekubal says:

            You quite obviously have not studied Hoshen Mishpat, and are making some fairly wild assumptions about what is written there. As this simply is not the case. Considering the breadth of information necessary to cover… or the fact that just about every siman in the first 28 contradict you… I am going to consider this at an end until you have had time to review the necessary information.

          • Very well. I withdraw.

          • Kim li is a concept that works within a given beit din. I.e., given two parties to court and several dayanim, a party can claim kim li. But this is within one beit din, and in the end, the beit din‘s ruling applies to both parties.

            But what we are discussing now is two people who each independently went to his or her own rabbi. Neither party can be bound by the other party’s rabbi. If both parties were together in one courtroom, then they could both make all their claims, and the dayanim would rule, and everyone would be bound by his decision. But that is not what happened here.

          • mekubal says:

            Not so. For just one example of how kim li is used in other halacot see Pischei Teshuva on YD 261. there we are dealing with disputes about the laws of circumcision.

          • mekubal says:

            BTW as far as imposing humrot on another person, you can and the Shulhan Arukh gives several specific examples. One that should be fresh in the mind, as Pesah just passed is that if a Sephardi(like me) invites an Ashkenaz(like many of the people here) to their home for a meal during Pesah, the Sephardi is bound by the humra of kitniyot for that meal, and thus cannot serve nor eat kitniyot while the Ashkenaz is in their home.

            Same thing goes with serving up or eating soft matzah. The need for cracker matzah isn’t even something you can find in the Shulhan Arukh.

          • No, if a Sephardi invites an Ashkenazi to his home, the Sephardi can eat whatever he wants, and the Ashkenazi has to guard himself from eating qitniot. It is not the Sephardi‘s obligation to watch the Ashkenazi.

            Furthermore, in the Shulhan Arukh, the case would have been of either an Ashkenazi being in a Sephardi locale, or vice versa. If the Ashkenazi is permanently relocated in Morocco, then he may permissibly eat qitniot with no problem. But if the Sephardi has moved to Poland, then he is no longer allowed to eat qitniot anymore. If either is merely vacationing or traveling, then he may/must keep his own home locale’s minhagim in private and the new locale’s in public. (I say “may/must” because some minhagim impose a leniency and others a stringency. The Sephardi may eat qitniot in private, but he doesn’t have to, while the Ashkenazi must must avoid qitniot.)

            When a man and woman marry, it is not that the woman must keep the man’s minhagim, but rather, both must keep the minhagim of wherever they live. It’s just that usually, the wife moved to her husband’s locale and adopted his minhagim, but this is not necessarily so.

            The concept of minhag avot was invented by Eastern European Ashkenazim who thought the Reformers were having a good time inventing new things not in the Torah, and the Haredim wanted to get in on the fun. (I’m being facetious, of course, and my statement is not an accurate summary of the historical or sociological forces that led to the Ashkenazim inventing minhag avot, but my flippant remark does accurately show my belief that the Ashkenazi invention of minhag avot is no less egregious a violation of bal tosif than anything the Reform Jews did.)

          • The operative principle is poresh min ha-tzibur. All minhagim are reducible to that principle. One must keep his local minhag ha-maqom, for if he violates it, he is a poresh min ha-tzibur. If one violates local custom, he is a social deviant. Everything else regarding minhag is commentary. For example, a vacationer may keep his own minhag in private, because no one will know, and no one will see his social deviancy with his own eyes. (Think quantum physics; observation affects reality.)

          • mekubal says:

            Thanks for a stimulating conversation BTW.

          • mekubal says:

            Again you make interesting assumptions about what the halacha is. However, not only are you contradicted by the Shulchan Aruch you are contradicted by all of the major Sephardi Poskim who were writing to Sephardim in Sephardi countries.
            see;
            Sefer Ben Ish Hai Parashat Tzav
            Rav HaPealim OH 453
            Kaf HaHaim 453:1:9
            Yalkut Yosef 453;5
            Hazon Ovadia p 86
            Halichot Olam 1, p 284
            Divrei Shalom Hadash 453:2

            While I admire your tenacity at defending your position, it simply is not based in halacha, as is easily evidenced by the number of sources against you.

          • gogo says:

            For your information: “Mekubal” has a habit of defending his point of view quite aggressively and resorting to personal insults like “you have not read xxxx”, but it often turns out that his point of view is flawed.

          • mekubal says:

            Thanks Shoshi. You never fail to track me down, and tell all you “know” about me.

          • HSaboMilner says:

            THIS SNIPING AT FELLOW COMMENTERS ENDS HERE! I will NOT tolerate it on my blog. There is a difference btw having a halachic discussion as Mekubal and Michael have been doing, than calling out someone by name and trashing him.

            IT ENDS HERE. NOW.

          • I personally had taken no insult. I’ve studied Hoshen Mishpat less than other subjects, and I was doing the equivalent of trying to study Mesekhet Nezikin based on my knowledge of studying Mesekhet Shabbat. Sometimes it works, but sometimes not.

  2. Noah Roth says:

    I suspect you have left the question vague on purpose.

    Is there a reason why they need to follow the same answer?

    Why shouldn’t each independently act ni accordance with the psak of their Rav?

    • Mark says:

      Maybe they live in the same house and the answer affects particular household matters that affects both.

      Or maybe it’s an issue regarding a family simcha or a family funeral, etc.

      This is probably why a woman accepts her husbands customs (and Rav) after they are married and begin living in the same household.

  3. Rachel Ann says:

    That depends. Must people act in concert or can they each act separately? If they must act in concert, if only one action can be taken by both parties, then either both parties must agree to submit to a third Rabbi, or one must go according the word of the sibling who has the greater responsibility, or will suffer the greater loss etc.

    If separately then each does according to their Rav, as should you.

    I don’t want to guess the issue, so that’s why so vague.

  4. TRS says:

    Presumably the two rabbis have been properly apprised of the situation, and know that they disagree. If they haven’t been, then they should be. I would assume that they can work something out between themselves, or else they can turn to a third, impartial Rav who will rule on the matter.

  5. G6 says:

    If they can each follow their own psak, they should do so.
    If it is a “psak for one” they should really preferably ONLY ASK ONE… that is to say, decide on whose rov to ask BEFORE the shaaloh is made. If it is for a parent or something like that, they should choose someone that the PARENT “holds by” as opposed to themselves.
    I’m not sure I necessarily agree with the “lowest common denominator” comment because who is to say that the stricter rav is paskening what he feels is a chumroh or what he feels is halacha.

    • ” … because who is to say that the stricter rav is paskening what he feels is a chumroh or what he feels is halacha.”

      That is true. Nevertheless, the person with the lenient rabbi has no obligation to follow the stricter rabbi. And koha d’hetera `adifa.

  6. Debbie B. says:

    I have listened to a lot of lectures by a MO rabbi in NYC whose lectures are available on the Internet. Most recently, I’ve been listening to his series on Halachic Decision Making:

    http://www.rayimahuvim.org/pages/summer_audio/summer_lect09.htm

    or http://tinyurl.com/nz2sso

    A couple of the lectures cover these kind of issues.

  7. blog follower says:

    I have been told that the more stringent path should be followed. I of course was told this by a Rabbi who is very stringent upon himself.
    My own thought is, if both answers are halachically okay then they will have a discussion and the sister will have her way (as it should be).

  8. Rachel Ann says:

    I think you go to a third Rabbi. In the future, it is important to decide what Rabbi will handle these decisions. Hatzlacha!

  9. mekubal says:

    One of two things is done. You can explain to the differing Rabbanim the situation, and ask one(typically the more lenient) to write a Teshuva for the other, who can then either refute it or agree to it, at which point essentially the two rabbanim work it out between them, and then get back to you with an answer.

    Or you can move on to a higher authority, but in doing so you must inform him of the decisions of the previous Rabbanim.

    Unlike what was said above, this quite possibly has nothing to do with one Rav being more machmir than another. Quite often the wording of a shaila or a Rav will skew his answer. Also depending on the level of bedika the Rav did into the matter, thus it is necessary to clarify as much as possible.

  10. kisarita says:

    minhag hamakom no longer applies today, because people move around so much and communities are diverse. So only family minhag applies.

    • But minhag avot is not a halakhic concept. It was invented by the Haredim, whole-cloth, with no Talmudic basis.

      There is a story in the Gemara about how to carry a knife through a public domain on Shabbat for the korban pesah, and Hazal say to just do what the people naturally do, because minhag avoteikhem b’yadekheim, “the customs of their forefathers are in their hands”.

      But this Gemara clearly does not create an obligation to observe minhag avot. As it turned out, the people carried the knife by inserting it into the wool of the sheep and letting the sheep carry it. But if the people had instead used some other method instead,, that someone circumvented the melakhah of carrying but in a different way than having the sheep carry it, this would have been fine. The Gemara says minhag avot, but it obviously is not creating an obligation to observe minhag avot, but merely a recommendation.

      So much for the Talmudic basis of minhag avot.

    • In summary: just because minhag ha-maqom no longer applies, does not give one permission to invent a non-halakhic concept to replace it. If the old halakhah doesn’t apply, then it doesn’t apply, and we all have heterim to do whatever minhagim we want. We don’t have to become Reform Jews and start inventing things.

      • Tzvi says:

        Minhag avoisenu beyadeinu is used by the gemara as the reason to obligate people in Chu”l to keep 2 days yom tov even after we have a calendar.
        Who are “the Chareidim”? The Chasam Sofer? the Vilna Gaon? Maybe Rebbe Akiva?

        • Good point. I’ll admit that to answer your objection, I’d have to do a lot more research.

          What I’ll say for now, however, is that just about every single last discussion of minhag in traditional literature discusses minhag as if it is geographically-bound. The discussions assume, for example, that if you live in Poland and move to Morocco, that you must adopt the Moroccan customs.

          Even into the 19th-century or so, Sephardim still held by this concept. For example, Rabbi Dr. Marc D. Angel’s article “Some Thoughts on Early American Jewry” (from Tradition, reprinted in Seeking Good, Speaking Peace) shows that the Sephardim of Charleston, SC wrote their congregational by-laws with the assumption that everyone in the city, whether or not he actually davened there, would be bound by their laws. Why? Because they were the minhag ha-maqom and authority of the city. Similarly, as Rabbi Angel shows in Voices in Exile: A Study in Sephardic Intellectual History, the Sephardim of London passed a taqana punishing with herem anyone who davened anywhere but at the central synagogue. When Ashkenazim came to Britain, the Sephardim wrote to the Hida about what to do.

          So two days of Yom Tov is an example of minhag avot I’ll have to research. Until then, I’ll say that every single example of minhag I’ve encountered in the Gemara and Shulhan Arukh has been a geographically-bound local community custom.

          What I suspect is that since the entire Jewish people accepted two days of Yom Tov, it became more of a Jewish custom than a local community one. Even so, I imagine, hypothetically, that if any one given community did not adopt that custom, that it’d be like Rabbi Eliezer’s town, where they ate chicken and milk together and cut down trees on Shabbat for milah.

  11. HaSafran says:

    Taiku.

    They need to wait for Moshiach.

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