Repackaged Rulings: The Responsa of R. Elyashiv

by: Yitzhak of בין דין לדין

Wolf2191 recently wrote:

N.B. I believe I noticed that some of the pesakim that R' Elyashiv issued when he was part of the Beis Din Ha-Gadol together with Chacham Ovadiah and Harav Kappach were republished in a kovetz under R' Elyashiv's name only, but I would need to check again.]

The קובץ תשובות

Three volumes of Rav Elyashiv's responsa have been published in Yerushalayim under the title קובץ תשובות, the first in 5760, and the latter two in 5763. None contain any preface, introduction or critical apparatus, except for the following brief prefatory paragraph, which appears verbatim in all three volumes:

קובץ זה נאסף ונלקט מספרים קובצים וכו'. וזאת למודעי כי ברוב התשובות לא היה גוף כתה"י לנגד עינינו, וסמכנו על הנדפס ויש מהם שבאו בחסר ושינויי לשון, כך שאין מקום כלל לקבוע דבר מהם. התשובות נלקטו ונסדרו ע"ד בלבד ואם שגינו אתנו תלין משוגתנו, ואנו תפלה להשי"ת שלא יצא דבר תקלה ח"ו מתח"י.

The title pages state merely that these responsa have been

נאספו נלקטו וקובצו מספרים וקובצים תורניים

A striking difference between the three volumes is in the sourcing of the individual responsa. The table of contents of the first volume contains sources for all the responsa, that of the second leaves many unsourced, particularly in the Even Ha'Ezer and Hoshen Mishpat sections, and that of the third dispenses entirely with sources.

Why does the second volume omit some sources? Rav Dovid Soloveitchik used to say (and probably still does) "We may only ask 'what does it say', not 'why'", so let us rephrase the question; which sources does the second volume omit? The crucial clue is in the fact that the table of contents of the first volume mysteriously gives the sources for many of the responsa as 'פ"ד', whereas that of the second volume contains no such references. 'פ"ד' clearly stands for פסק דין, or perhaps more precisely, פסקי דין, and indeed, most of the unsourced responsa in the second volume seem to be excerpts of rulings originally published in the פסקי-דין של בתי הדין הרבניים האיזוריים בישראל, which explains their concentration in the aforementioned sections.

I have hunted down the sources for a half dozen responsa from the beginning of the Hoshen Mishpat section of the second volume of the קובץ תשובות:

The remainder are left as an exercise for the reader.

Of the six cases listed above, five were apparently decided unanimously, and the published opinions are recorded simply as the courts' rulings. The third case in the above list yielded a split decision; one opinion appears over the names of R. Elyashiv and a colleague, and another opinion over the name of the third member of the panel. The קובץ תשובות' inclusion of these opinions implies that they have been authored by Rav Elyashiv himself, although the careful reader will notice that the editors do not explicitly attribute them to him; his signature is not appended, as it is to many of the responsa in the work.

The פסקי דין

We have mentioned the פסקי דין; a few words about this invaluable work are in order. At more than eight thousand pages in more than twenty volumes, it is the largest, and unquestionably the most important, published collection of casefiles in the areas of Hoshen Mishpat and Even Ha'Ezer. The decisions are lengthy and intricately argued, and they include copious citations of earlier literature as well as much important original analysis. Many of the בתי הדין הרבניים are represented, as are many of the most eminent Talmidei Hachamim and experts on Hoshen Mishpat and Even Ha'Ezer of the latter half of the twentieth century. Here is a list of some of the best known of these scholars:

• אליהו בקשי דורון
• E. Bazri
• מרדכי אליהו
• יוסף שלום אלישיב
• זלמן נחמיה גולדברג
• עובדיה הדאיה
• S. S. Karelitz
• יצחק נסים
• יוסף קאפח
• אליעזר יהודה ולדנברג
• שאול ישראלי
• עובדיה יוסף
• בצלאל זולטי

Current Status and Availability

According to the Hebrew University catalog entries (See the Main Catalog entries (not JNUL) here and here) twenty two volumes of rulings have been published to date, plus three index volumes. I believe that the cost of the print version is exorbitant, but the wonderful people at HebrewBooks.org have made most of the volumes available for free download, in PDF format; search for פסקי דין. They apparently have the same material that my local library has, nineteen volumes of rulings plus index volumes. [My library has one index volume, covering volumes one through fifteen, they have two, covering volumes one through five and six through ten, and the Hebrew University collections have all three.] They seem to have duplicate copies of volumes eleven through eighteen, and the publication dates of their first series, titled אוסף פסקי דין, are all given as תש"י, which is obviously incorrect (this is the date of the appearance of the first volume, as we shall presently see), but this is mere carping; their making (most of) the work available for free online is a great boon for anyone interested in Hoshen Mishpat and Even Ha'Ezer.

Present At the Creation

Wolf2191 has shown me Dr. Zerah Warhaftig's personal account of the founding and subsequent evolution of the project:

An important innovation in the history of the responsa literature was inaugurated in Israel with the decision to publish the rulings of the Rabbinical High Court of Appeal and those of the district rabbinical courts. The rulings are published together with the arguments on which they are based, as presented in court. Indeed, I myself proposed the publication project, and was charged with its implementation, a responsibility I viewed as a great privelege and sacred trust.

Previously, the Rabbinical High Court of Appeal followed the traditional system of issuing brief rulings while at the same time compiling a full account of the halakhic deliberation on the case in pamphlet form for circulation among judges. Deliberation and discussion are an essential part of the legal process, allowing the individual judges an opportunity to convince their colleagues of the validity of their arguments, so that a decision can be reached. The pamphlets were intended to facilitate this process, rather than explain the rulings to the litigants involved, so that they could understand why they had won, or lost, their cases.

There was no appeal against a ruling of the Rabbinical High Court, nor were there establishe procedures for appealing the rulings of district rabbinical courts. (Interestingly, these pamphlets often served as the basis for volumes of responsa published by their authors years later.)

The idea of publishing, in an organized fashion, both the courts' rulings and their grounds, and that of appending abstracts of the laws cited in the rulings, as is customary in law reports, to allow for ease of reference and study, was thus entirely new. Accordingly, the Chief Rabbinate, which had to approve the proposal, had to be convinced of its merits. This entailed some negotiation, in which, as head of the Ministry of Justice's Research Institute for Jewish Law, I was much involved.

In due course an agreement in principle was reached between myself and the Chief Rabbinate. After some administrative changes were carried out, the first collection of rulings of the Chief Rabbinate's Rabbinical High Court of Appeal was finally published in 1950. Assisted by S. B. Feldman, S. Z. Cahana and P. Galevsky, I served as editor. In the foreword to the volume, I wrote:

The selection of the rulings herein published was guided by the desire to accurately portray the workings of the court. Most of the rulings relate to family law and public endowments; the others are devoted to monetary matters. The opinions of the judges, with a few exceptions, are not published as written, but have been abstracted by the editors from the contents of the pamphlets appended to the case files. This volume thus does not constitute a formal record and the editors assume full responsibility for the adaptation and wording of the judicial opinions.

...

It was found that publication encouraged rabbinical courts judges to communicate their opinions in a clear and orderly manner comprehensible to those unschooled in Jewish law, whether jurists or members of the public. Over time, rulings of the Rabbinical High Court of Appeal and the district rabbinical courts began to be handed down in a form that allowed them to be published as written, with no editing. Accordingly, it was decided to publish the rulings of the district rabbinical courts, and later, those of the Rabbinical High Court of Appeal, on a monthly basis. ...

In addition to the inaugural volume of rulings of the Rabbinical High Court of Appeal, eleven volumes of rulings of Israel's rabbinical courts had been published by 1960. These well indexed volumes alone contain a wealth of decisions on questions of family and monetary law and on matters of vital public interest.

So in addition to Wolf2191's point about the republication of the panels' rulings as specifically Rav Elyashiv's, Warhaftig tells us that the rulings in the first volume of the פסקי דין (at least one of which is included in the קובץ תשובות, as above) are actually abstracts written by the editors, and not the original opinions penned by the Dayyanim in the first place!

Gravely Mistaken

by Akiva Leiman

R. Leiman teaches high school at the Yeshiva of Greater Washington in Silver Spring, Maryland.  Additionally, he leads trips to sites of Jewish interest in Eastern Europe. This is his first contribution to the Seforim blog.

One hardly need go far to find errors in published materials, but when even moderate research would suffice to unearth correct information lack of such an effort would seem egregious. Jewish burial sites have often been lost: Nazis or indigenous peoples destroyed cemeteries, acid rain ravages stones, burning candles char monuments and, of course, people just simply forget where things are.[1] Misinformation, however, would seem to be the most preventable culprit in this ever-losing battle to maintain vestiges of our heritage.

A few examples should suffice.[2]

1. In Paul Johnson's A History of the Jews, in the very first paragraph of the actual text, he says,

There in the Cave of Machpelah, are the Tombs of the Patriarchs . . . . Across the inner courtyard is another pair of tombs, of Abraham's grandson Jacob and his wife Leah. Just outside the building is the tomb of their[3] son Joseph.

In an endnote he references L.H. Vincent and his depiction of the cave which has been reproduced in EJ XI p. 671. There the caption does read: "Tomb of Joseph." However, the text of the EJ explicates that, "A Muslim tradition maintains that Joseph was buried here... (t)his tradition is probably due to a corruption of the Arabic name for Esau, whose head, according to aggadic sources fell within the cave..." EJ's theory for the mistake aside, Johnson must not have read the text of the article (or: ignored it), for though the diagram's caption tells us that Yosef is buried in the Cave, the text belies this point.[4] Furthermore, see Joshua 24:32 (providing Shechem as Joseph's burial place),[5] which must, at the very least, be mentioned in any serious discussion of the final resting place for Yosef.[6]

2. In בשבילי ראדין, by M. M. Palato, Machon B'Shvilai HaYeshivot, (2001), p. 25, we are provided a picture and told "that we are being shown the final resting place of R' Chaim of Volozhin (d. 5581 - 1821), the most esteemed student of the Vilna Gaon, and he is buried next to his mentor."[7]

But, R' Chaim is actually interred in Volozhin[8] and his grave is a regular stopping point for those visiting the Byelorussian town. The picture shown is of the old Ohel over the grave of the Vilna Gaon in the since-destroyed Shnipishok cemetery of Vilna. Of course, R' Chaim's grave is not pictured at all.[9]

3. Holy Stones: Remnants of Synagogues in Poland, drawings by Joseph Cempla, Dvir, Tel Aviv (1959) is a beautiful group of renderings of pre-war Poland. From the description for plate number 13 we read:

The gravestone of Rabbi Shalom Shachna in the Lublin Cemetery: Rabbi Shalom ben Joseph Shachna[10] (1510-1550[11]) was one of the greatest Talmudists produced by Polish Jewry. He was the pupil of Rabbi Jacob Polak, head of the Lublin Yeshiva, who created the method of "Pilpul"[12] (casuistics)[13] employed in the study of Talmudic literature.

It is correct that R' Shalom Shachna was a student of R' Yaakov Polak, but the stone sketched by Cempla is not R. Shalom Shachna. Here is Cempla's drawing:

And here is a picture of R' Shalom Shachna's grave today in the Old Cemetery of Lublin:

The grave today stands without the adornments found in Cempla's rendering: no pillars, no arch and no artistic flair filling the arch. Also, Cempla seems to indicate ten or twelve lines of etching while the current stone shows at least fifteen; puzzling, if not insurmountable issues.

A bit more research revealed the obvious error. Within twenty feet of R' Shalom Shachne stands this prominent headstone:

This is the grave of Rabbi Yaakov Yitzchak Horowitz (d. 9 Av 5575 – 1815), the Chozeh of Lublin.[14] It seems almost certain, upon comparing Cempla's drawing with that of the Chozeh's headstone is that Cempla drew the Chozeh's headstone mistaking it for the tomb of R' Shalom Shachna which lies in its close proximity.

[1] I can recall, as a young man, visiting the old cemetery in Tzfat immediately after havdalah. I encountered a middle-aged Chassidic Jew at that strange time, and inquired after the grave of Rabbi Chaim Vital (d. 5380) the eminent student and chronicler of R' Yitzchak Luriah – the Ari Hakadosh (d. 5332). He told me to go up the road and after a bit to ask for directions to Damascus...

[2] For another example see אבי מורי, Dr. S.Z. Leiman, in Who is Buried in the Vilna Gaon's Tomb? Originally published in Jewish Action, Winter (1998), 59(2), and which can be found online at: http://www.ou.org/publications/ja/5759winter/leiman.htm

[3] Sic, he was the son of Rachel not Leah.

[4] See Z. Vilnai, מצבות קודש בארץ ישראל, pp. 167-176, where (p. 170) sightings of the burial place in Shechem date to 320 AD.

[5] ואת עצמות יוסף אשר העלו בני ישראל ממצרים קברו בשכם

[6] For further discussions, see L. Ginzberg, Legends of the Jews, V1, JPS (2003) p. 430 n. 443. Also, Vilnai pp. 141-144. To come full circle, in Acts 7:16 we are told that Jacob was also buried in Shechem!

[7] See note 1 above.

[8] For a nice photo, see Mishpacha, Special Supplement Succos 5767, pp. 24-25.

[9] The caption also tells us that R' Zalmaleh of Volozhin, the brother of R' Chaim and most brilliant student of the Vilna Gaon, is in the photo as well. He is neither in Volozhin, next to his brother, nor in the Gaon's Ohel. See note 1. His grave has sadly been lost.

[10] I would assume that Shachna was his second, not family name; the stone reads:שלום המכונה שכנה, which would seem to be a nickname rather than a surname.

[11] See S. B. Nissenbaum's Lekorot HaYehudim B'Lublin, p. 19 for the exact wording on his tombstone. He actually died on Friday Rosh Chodesh Kislev 5319, which was in 1558. See A. A. Akavia לוח לששת אלפי שנה p. 485.

[12] Quotes in original

[13] Parenthetic translation in original

[14] Interestingly, in Y. Alfasi החוזה מלובלין p. 107 nt. 9 there is a discussion if the Chozeh is in fact buried near R' Shalom Shachna. He relies on a pre-war witness. Today one can go and see for himself, ואין לדיין אלא מה שעיניו רואות.

The subject of Toldos Anshei Shem by R' Shlomo Buber, Lvov has had its history well written and studied. R' Buber went so far as to personally request from the Rav of Krakow, the noted historian and author, R' Noson Chayim Dembitzer to collate his own findings; the result, a sefer of immense value to any student of history and genealogy, Klillat Yofe.⁶ These seforim list prominent men of stature and renown, leaders of the kehillot, their works and ancestors, shedding valuable light on the city's history.

From the beginning of the 5^th century, (1640) Lvov's two communities ['inner' Lvov, and 'outer' Lvov] united under the leadership of one Rav. This period of grace between the communities lasted for close to two hundred years, and ended with the passing of the famed Gaon of Lvov, R' Yaakov Meshulem Orenstein in 5599 (1839), the focus of this article.

Much has been written regarding this sage, with numerous accounts detailing his biography. Klillat Yofe details his father's position as Rav of Lvov, R' Mordechai Zeev, who took office after R' Shlomo of Chelm stepped down as Rav in order to embark on a journey to Eretz Israel.⁷ In 5547 (1787) R' Mordechai Zeev was taken suddenly from this world, leaving a young twelve year old Yaakov Meshulem an orphan. The youth's best interests in mind, whilst still in the shiva period he was betrothed to the daughter of R' Tzvi Hirsch of Yaruslav, who was financially well off and would support his son-in-law.⁸ As such, the young man developed in his studies, and gained repute as a scholar of stature. His opinion was sought in many difficult matters, and elders as well as his contemporaries flocked to his doorstep in Yaruslav to discuss various issues with him. Notably, R' Aharon Moshe Tobias of Satnin, author of Shut Toafos Reem, would spend much time conversing with R' Yaakov Meshulem.⁹ Additionally, he was friends with R' Yehonosan Shimon Frankel, author of Etz Pri Kodesh, Lember, 1838. See his haskmah where he referrs to him as "yidid nafshe." He was also friendly with R' Yaakov Tzvi Yalish, author of Melo haRoim who he refers to as "hu yedidi min'noar."

R' Yaakov Meshulem mentions having been Rav AB"D of Zhalkov for a period, but the exact dates aren't clear. Later, he was appointed to take his father's seat as Rav AB"D of Lvov, and we find witness that in 5566 (1806) was already serving Lvov as its spiritual head, a position he held for over 30 years, until his passing.

The hub of religious activity in Poland, R' Yaakov's opinion on halachic matters was sought out by the leading sages of his time. Halachic authorities such as R' Moshe Sofer (author of Shut Chasam Sofer), and R' Akiva Eiger, R' Aryeh Leibish of Stanislaw (as well as with his son and successor R' Meshulem Yissocher, author of Shut Bar Levai), as well as R' Yaakov's relative, R' Chaim Halberstam of Sanz all queried him on matters of grave importance. His opinions regarding rulings issued by R' Shlomo Kluger of Brody versus his dissenters are collected in sefer Shivas Eynayim, along with those of his son, R' Mordechai Zeev.

While himself not a member of the Chassidic camp, R' Yaakov showed no animosity towards Chassidim and their leaders, and is purported to have met with Rebbe Yisroel Freidman of Ruzhin, as well as Rebbe Meir of Premshlyn.

As the head of the most prestigious community in the area, R' Yaakov also held the position of Nasi or president of Eretz Israel, and was responsible for the collation and distribution of all tzedakah funds earmarked for the Holy Land's poor.¹⁰ In addition, being financially secure, R' Yaakov established a personal free-loan organization, a gemach.

The apple of his eye, his only son R' Mordechai Zeev was taken from him at an early age on the 17^th of MarCheshvan 5597 (Oct 28, 1836). Less than three years later, R' Yaakov passed away on the 25^th day of Av, 5599 (Aug 5, 1839), and was buried next to R' Shmuel Halevi, author of Turei Zahav. Out of respect for their venerable leader, it was agreed upon that no longer would there be one Rav heading both communities, rather a new title called 'Rosh Bais Din', with less authority was implemented. In the succeeding line of leaders, Lvov called R' Yaakov's grandson, R' Tzvi Hirsch to take his rightful place. In turn, R' Tzvi Hirsch's son-n-law, R' Aryeh Leib Broide¹¹ succeeded him.

R' Orenstein's Works & the Controversy Over Their Publication

A prolific writer, R' Yaakov is best known for his magnum opus, Yeshuos Yaakov, novella covering all four sections of the Shulchan Aruch. Published in his lifetime, R' Yaakov is said to have danced with a copy of a second edition, stating that he is now assured that this work is considered by heaven to be 'prophetic' in nature.¹² He also penned chiddushim on the Torah in the order of the parshiyos, at first printed together with the chumash entitled 'Ein Yaakov', and later published as a separate volume. A new edition of these chiddushim was re-typeset in 5764 (2004), with a two page biographical sketch.

Throughout Yeshuos Yaakov, R' Yaakov cites numerous times his chiddushim on Shas, Rambam as well as his teshuvos, responsa. Seemingly, these works remained in manuscript form, and over the course of the years were lost. Recently, an attempt was made to 'reconstruct' those chiddushim on Shas based on chiddushim and references gleaned from sefer Yeshuos Yaakov. Chiddushei Yeshuos Yaakov al Seder haShas, 7 volumes, printed by Machon leCheker Kisvei Yad - Chochmas Shlomoh, Yerushalayim, 5757-60/1997-2000.

In the last months of 5666 (1906), R' Avraham Yosef Fisher, a well-known publisher, printed R' Yaakov's teshuvos from manuscript, in Peterkov. According to R' Fisher, he was given the autograph from the then Gerrer Rebbe, R' Avraham Mordechai Alter (author of Imrei Emes) for printing. The responsa were reordered according to the Shulchan Aruch, and in the end of the sefer, a table of contents as well as a list of errata and annotation was added. For reasons not fully explained, R' Fisher printed the book sans approbations that he claimed to have received from various leaders. He had applied to several sages for their approval, and while waiting for their response, decided to publish without them. In deference to those letters not at hand, he chose to omit those he did have, citing his desire to publish as taking precedence. This printing of the sefer was photo-mechanically reproduced in New York some forty years ago.

Several months after his sefer was printed, R' Aryeh Leib Broide, the son-in-law of R' Yaakov's grandson and heir, R' Tzvi Hirsch, issued a variant title page, and introduction. Claiming that the book had been in his personal possession to date, he alone had sent it to a printer, one Shimon Neiman for publication. Seemingly, the book changed hands, R' Fisher took possession of the printed volumes, selling them under his name, with R' Aryeh Leib Broide receiving a mere thirty volumes. As rightful owner, R' Aryeh Leib decried this act, and wondered how the name of the Gerrer Rebbe had been brought in to the fray. The variant pages were then bound to these thirty volumes.

Speculation as the behind the scenes reasoning would be an exercise in futility, as no word of it was mentioned by the Gerrer Rebbe himself.¹³ While it is possible that R' Aryeh Leib's claims are accurate, R' Fisher was a respected publisher, and would only stand to lose by stooping to theft. Further, the silence of the Gerrer Rebbe on the issue is deafening in its own right. What cause could he have had be still regarding this issue? If he did give the book along with a letter, why remain silent? On the other hand, if his name was simply being used, why did he allow himself to remain an accessory to theft, even if only a defacto one?

One might postulate based upon the religious leanings of those involved. Lvov at the time was torn between the haskalah movement, and the majority of its opposition, the Chassidim. While R' Yaakov stood strong against the waves of the enlightenment, after his passing those safeguards he passed began to lose potency. The Rabbinate in Lvov became politically controlled by those with positions of power and wealth, and sentiment among the Chassidic community in Lvov was that even R' Tzvi Hirsch was suspect of leaning towards the maskilim.¹⁴ Certainly R' Aryeh Leib was considered controversial. His son Mordechai (Marcus) studied in Polish schools, received a doctorate, and married Martin Buber's sister, Gila. It is possible that R' Neiman had suspicions as to the religious opinion of the book, seeing how the main buyers market were Chassidim. Should the book be published under R' Aryeh Leib's name, it might not sell. Moreover, it could be he suspected R' Aryeh Leib of wanting to edit the text, based on his personal leanings. Perhaps he sent it to the Gerrer Rebbe, who in turn allowed for R' Fisher to print it, and use his name. In the event of exposure, R' Fisher would take the blame, while the Gerrer Rebbe would remain silent, thereby obfuscating the facts.

This year, a new edition of this controversy-fraught sefer has been published. Completely re-typeset, with the annotations and corrections penned by R' Fisher added in their rightful locations. Additionally, an index has been set up, to reference the standard ensemble of basic halachic texts; Shas Bavli and Yerushalmi, Rambam, Tur and Shulchan Aruch.

Many of the responsa are those alluded to by R' Yaakov in his Yeshuos Yaakov; some of the letters are replies to expound his thoughts in Yeshuos Yaakov. A veritable 'who's who' of Galitzian Rabbis can be listed among those querying R' Yaakov; R' Chayim Halberstam of Sanz, R' Aryeh Leibish of Stanislaw, and R' Moshe Sofer, to name a few.

The current publisher did not feel the edition would be complete without scouring the available literature and storehouses for those novella and letters that are not readily available. Such, an addendum was appended to the sefer, with additional responsa, derashos, chiddushim and even witticisms and anecdotes not found in the more common seforim. Of note, is a particularly interesting piece R' Yaakov expounded upon in the main beis medrash of Lvov in honor of Kaiser Franz Joseph [Emperor Franz II], on June 29 1814 (the 11^th of Tamuz 5). The spirit of the derashah is the miraculous victory the Emperor had over Napoleon Bonaparte, and how he was Divinely aided in battle. A lone copy of this sermon survived, and Dr. M. Balaban reproduced it in his volume in honor of Dr. Mordechai (Marcus) Broide.

Other curios include novella that elaborate on those posed in Yeshuos Yaakov, and anecdotes from obscure works of that period. In one incident, while speaking with a local Rav of lesser standing, R' Yaakov offered a very insightful thought. The Rav, realizing the potential use of this thought in a personal derashah, asked of R' Yaakov to 'present' him with this thought and make it his "own". Understanding the Rav's motive, R' Yaakov agreed under one condition: that upon using the thought as his own, he must announce that he received it as a gift from R' Yaakov.

As a final touch, the publisher added a photo of the original title page, as well as the variant pages printed by R' Aryeh Leib. The ability to locate an extant copy of one of thirty copies ever bound testifies to the sheer effort expended in this edition.

[Available at Girsa Books, Jerusalem; Biegeleisen Books, Brooklyn NY USA, and fine bookstores worldwide]

Notes