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Halachic stacking

שו”תCategory: Talmudic studyHalachic stacking
asked 5 years ago

There is halachic hoarding that is permissible from the outset (‘Maarimin al Maaser Shani’ to sell in order to get rid of the tithe) and there is problematic (income through karpipot in order to get rid of the tithe). The examples are from here . And there is the sale of mebkirot and hametz and the rest of the sale and the rest of the business and prozbol and the mixing of dishes, etc.
The Rabbi wrote that in formal laws it is possible to commit fraud, because halachic formalism includes everything and whatever is permitted is permitted. But in consequential or moral laws it is not done (I couldn’t think of an example. Maybe the damage is in the gram? There it is obligatory according to the laws of Heaven and apparently it is because fraud fails and is still prohibited). Quoting from the answer here
[It would have been better if I had first collected as many examples of permissible and forbidden stackings as possible in the Gemara and Poskim before I approached the question (and perhaps the answer would be clear from the examples), but I understand from the articles of the wing (more correctly the wing of the chest and the thigh) that the Rabbi has already sorted and arranged the stackings of a woman on a flag as signs for the house of verification. Perhaps there is an article about this? (I have a certain memory that I read such a thing once, but I was not able to find it now when searching the site). I am indeed asking very superficially without getting stuck on the details because I am not familiar with them. If this absence is critical to the answer, then I will go change this chapter.]

My questions:

A. Where does the assumption come from that halakhic formalism contains everything? After all, Margalla on your keyboard said that the positivist pretense in the law (that it is possible to formulate the precise intention in words without leaving any lacunae or room for interpretive freedom) is an illusion. I understand that the intention is that where we do not have access to the spirit of the matter, then we are forced to settle for formalism. Is that really so? And is it only in the layers where it is easy for us to see how the halakhic law could be formulated in a way that would prohibit this deviation?

on. After the distinction between law and morality, why is it impossible to deceive even in laws ‘with spirit’? The deception will work on the halakhic level, and the moral problems remain as they are. From the fact that there is a distinction, I understand that the spirit here is a refined halakhic spirit (read: what are we trying to achieve with the help of this law) and not a moral spirit, and so the distinction between formal laws (in which we have failed to decipher the spirit, and therefore ignore it and are content with formalism) and laws that are not-merely-formal (in which we have deciphered the spirit and therefore are careful not to deceive it) is less clear to me.
And furthermore, is it difficult for halachic intuition to find a spirit for the fifth in the redemption of the second tithe or for him and his son who fell into the pit in Yot (who raised them both up)? (Not to mention interest, prozbol, the second tithe, leaven, and the mixture of spices.
 

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מיכי Staff answered 5 years ago

One can think of someone who murders in ways of deceit for which he is exempt. Or incites others to murder, for which he has no prohibition at all. If he is guilty of the result, it is not appropriate to do so.
I don’t have an article on this, although I was planning to. I remember a class I gave once, but I can’t remember right now where or if there’s anything written about it.
A. When the halacha explicitly exempts from the tax on fruits brought in through the roofs, this is certainly permissible. There is no omission or imprecise wording here. There is an explicit exemption. Therefore, in my opinion, what the Gemara in the blessings of Ha-Had prohibits (or looks upon with disfavor) is only for self-education and not because of the tax laws themselves.
B. It is indeed true that when we focus on moral laws, it will solve the halakhic problem and only the moral problem will remain. But only with moral laws does such a problem remain, which is why I wrote that there is a difference between these laws and “religious” laws.

קרדיגנו replied 5 years ago

Thank you very much.

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