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| == Overview == | | = The Three Cardinal Sins = |
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| '''בית יוסף - הקדמה'''
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| ועלה בדעתי שאחר כל הדברים אפסוק הלכה ואכריע בין הסברות כי זהו התכלית להיות לנו תורה אחת ומשפט אחד. וראיתי שאם באנו לומר שנכריע דין בין הפוסקים בטענות וראיות תלמודיות הנה התוספות וחידושי הרמב"ן והרשב"א והר"ן ז"ל מלאים טענות וראיות לכל אחת מהדיעות. ומי זה אשר יערב לבו לגשת להוסיף טענות וראיות. ואיזהו אשר ימלאהו לבו להכניס ראשו בין ההרים הררי אל להכריע ביניהם על פי טענות וראיות לסתור מה שביררו הם או להכריע במה שלא הכריעו הם. כי בעונותינו הרבים קצר מצע שכלינו להבין דבריהם כל שכן להתחכם עליהם. ולא עוד אלא שאפילו היה אפשר לנו לדרוך דרך זה לא היה ראוי להחזיק בה לפי שהיא דרך ארוכה ביותר:
| | = Other Mitzvot = |
| ולכן הסכמתי בדעתי כי להיות שלשת עמודי ההוראה אשר הבית בית ישראל נשען עליהם בהוראותיהם הלא המה הרי"ף והרמב"ם והרא"ש ז"ל אמרתי אל לבי שבמקום ששנים מהם מסכימים לדעת אחת נפסוק הלכה כמותם אם לא במקצת מקומות שכל חכמי ישראל או רובם חולקין על הדעת ההוא ולכן פשט המנהג בהיפך:</blockquote>
| | Whereas violation of the three cardinal sins constitutes a Chillul Hashem and one must therefore give up his life to avoid it, violation of other Mitzvot does not, unless it means certain criteria, in which, the gravity of the sin is so great that it also warrants giving up one's life.<ref>Beit Yosef Yoreh Deah 157:1</ref> |
| In his acclaimed introduction to the Beit Yosef, Rav Yosef Karo sets down his monumental rules of Pesak, to follow the three Amudei Horaah, the Rif, Rambam, and Rosh, upon whom the entire Jewish nation relies. We are simply incapable of decide for ourselves who is correct from among the dominating figures of the Rishonim. There exist a number of approaches to understanding the Beit Yosef's approach to Halacha and the extent to which it has been accepted among the Jewish people. Such discussions also appear regarding the acceptance of the Arizal's rulings. These are some basic approaches to elaborated on further below.<ref>This overview section is based heavily on the [http://www.otzar.org/wotzar/book.aspx?198570&pageid=19857000527 Darkei Horaah section of Orot HaTahorah], by Rav Zecharia ben Shlomo. It also appears in the back of his other Sefarim, Hilchot Tzava and Orot HaHalacha.</ref>
| | # Based on the narrative of Yehudah and Tamar, Chazal advise one to rather jump into a fiery furnace than humiliate his fellow in public. Some Rishonim take this literally as an additional Mitzvah to sacrifice one's life instead of violating,<ref>Berachot 43b, Tosafot Sotah 10b s.v. Noach Lo who writes that though the list is always of three cardinal sins it only records but is not limited to those sins explicated in the Torah. The Brisker Rav (ad loc) postulates that it could be a Middat Chassidut if not for Tosafot's difficulty seemingly indicating it's a Din. Rabbeinu Yonah (Shaarei Teshuvah 3:139) considers is a subcategory ("Avak") of murder. See [http://hebrewbooks.org/pdfpager.aspx?req=15096&st=&pgnum=90&hilite= Shu"t Minchat Shlomo vol. 1 Siman 7] at length.</ref> while others argue Chazal were exaggerating to make a point and did not mean we should take the Halacha literally.<ref>Meiri Berachot 43b, Rav Hershel Schachter (Berachot 5778 #85). See also Yabia Omer vol. 6 Yoreh Deah 13:12 and [http://www.hebrewbooks.org/pdfpager.aspx?req=21282&st=&pgnum=141&hilite= Shu"t Bnei Banim 1:41]</ref> Others accept the Gemara as Halacha but qualify it to any embarrassment equivalent to the eteral humiliation of Yehudah from Tamar. Only in such instances must one die rather than embarrass his fellow in public, and, since we are incapable of measuring such embarrassment, we cannot consider such an avenue.<ref>[http://www.otzar.org/wotzar/book.aspx?181545&pageid=P0329 He'arot HaGris Elyashiv Berachot 43b]. See also Hearot [http://www.otzar.org/wotzar/book.aspx?181545&pageid=P0329 to Ketubot 67b] and [http://www.otzar.org/wotzar/book.aspx?181537&pageid=P0218 to Bava Metzia 59a]</ref> |
| === Sepharadim ===
| | == Shmad/Persecution == |
| # '''Chacham Ovadia Yosef''': The rulings of Shulchan Aruch have been accepted in any case, lenient or strict, even Lechatchilah. In a case of "Stam vaYesh," the Halacha follows the Stam unequivocally.<ref>See Yabia Omer (vol. 1 Yoreh De'ah 25), the end of Yechaveh Da'at (vol. 5), and the introduction to Taharat haBayit.</ref>
| | # Even if the ones trying to uproot Jewish practices are the Jews themselves, such as the Reform, the situation would be considered one of Shmad.<ref>Shu"t Avnei Nezer Choshen Mishpat 103 writes how abolishing the Minhag of calling up Olim by their names to get an Aliyah would be an application of this din.</ref> |
| # '''Chacham Ben Tzion Abba Shaul''': The Shulchan Aruch's rulings are not absolute "BeTorat Vaday. Although he decides debates between the Rishonim, if one side was not completely rejected, the Shulchan Aruch will present the more correct one as "Stam" and the less correct but still significant view as a "Yesh Omrim" to recommend one be stringent if easily possible. If the "Yesh" is more lenient, then it's worthy of being included as an additional reason to be lenient in situations of need. This understanding resolves numerous contradictions in Shulchan Aruch and stringencies in Ben Ish Chai. Similarly, in a "Yesh veYesh" - two Yesh Omrims - the Halacha follows the latter, but the former was written for the above reasons. Essentially, the rulings of the Shulchan Aruch were accepted "BeTorat Safek;" therefore, one can better understand how Acharonim can rule stringently against the Shulchan Aruch in cases of Torah level prohibitions, such as by employing the principle of Safek Berachot leHakel Neged Maran.<ref>[http://www.hebrewbooks.org/pdfpager.aspx?req=19979&st=&pgnum=24 Ohr LeTzion vol. 2 "Yesodot Darkei Horaah."] This is also the primary approach of Rav Zecharia ben Shlomo</ref>
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| # '''Chacham Mordechai Eliyahu''': The '''Ben Ish Chai''' unified Nigleh and Nistar, the rulings of Maran Rav Yosef Karo with those of the Zohar and Mekubalim, with the Arizal at their head, and he was accepted as the Posek Acharon.<ref>Hakdama to Kitzur Shulchan Aruch with comments of Rav Mordechai Eliyahu. For a crisp and concise articulation of this approach, see [https://www.youtube.com/watch?v=-r76FxGzCuM Which Hacham/Rabbi Should Sephardim Follow? by Rabbi Ya'aqob Menashe].</ref> | |
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| === Ashkenazim === | | == In Presence of a Minyan == |
| # The Ashkenazi custom is to follow the rulings of Rav Moshe Isserles, known as the Rama. In places where the Rama did not write glosses on Shulchan Aruch, Ashkenazim revert to following the positions of the Shulchan Aruch. The Rama<ref>Hakdama to Darkei Moshe, Shu"t HaRama Siman 48</ref> and Maharshal<ref>Hakdama to Chullin</ref> admit to the magnificent work that is the Beit Yosef; they argue that the way opinions of the Baalei HaTosafot, Mordechai, etc. are weighted leaves their Minhagim in question.
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| === Teimanim ===
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| # '''Peulat Tzaddik (Maharitz)''': Minhag is to follow Shulchan Aruch in general in addition to the stringent opinions of the Rambam.<ref>Peulat Tzaddik vol. 2 Siman 251. See Klalei Maharitz by Rav Yitzchak Ratzabi printed at the end of Shulchan Aruch HaMekutzar and [http://www.maharitz.co.il maharitz.co.il]. Similarly, Rav Ovadia (Yechaveh Daat vol. 1 Siman 27) argues Teimanim who move to Eretz Yisrael should accept the positions of the Shulchan Aruch, such as by reciting a Beracha on lighting Yom Tov candles.</ref>
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| # '''Shtilei Zeitim<ref>Hakdama to Shtilei Zeitim</ref> and Revid HaZahav<ref>Revid HaZahav Siman 26, page 37</ref>''': Teimanim follow Shulchan Aruch completely, with a sprinkling of Minhagim like the Rama, but not the Rambam.<ref>See Iggerot Moshe Yoreh Deah vol. 3 Siman 117</ref>
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| # '''Rav Yosef Kapach''': The custom in Teiman was to follow the Rambam almost exclusively.<ref>Hakdama to Biur on Mishneh Torah, pages 21-22, He told HaRav Zecharia Ben Shlomo on more than one occasion that there are cases where they do not follow the Rambam</ref>
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| == Klalim == | | == For the Non-Jew's Benefit == |
| === Acceptance of Shulchan Aruch for Sepharadim === | | == Mitzvot Aseh == |
| # In general, if a community with Minhagim is removed from its location for whatever reason and another community (not just individuals) eventually takes its location, the second community maintains its own traditions and is not bound by the traditions of the original one.<ref>See Beur Halacha 468 s.v. Vechumrei HaMakom</ref> However, in Eretz Yisrael, where the Minhag has been like the Shulchan Aruch, the lack of current Sepharadic community following the Shulchan Aruch does not mean that the new Sepharadic communities to settle there are independent of its rulings, because '''the Sepharadic acceptance of Shulchan Aruch is not a function of Minhag HaMakom or Mara deAtra, which could be lost, but rather, acceptance on the community and all its descendants.''' Therefore, the communities moving to Eretz Yisrael are themselves communities that already live under the banner of Shulchan Aruch, as they have for centuries, and continue to do so. Of course, if they ''never'' accepted the Shulchan Aruch, that's a different story. With respect to the Rambam, however, the acceptance ''was'' a function of Mara deAtra, so the acceptance is not binding on new communities. With the great Kibbutz Galuyot of the past century, it's worthwhile for all those gathering in Eretz Yisrael to accept Minhag Yerushalayim as a unifying force and avoid controversy in the commonly non-uniform communities that now exist.<ref>Rav Chaim David HaLevi (Shu"t Aseh Lecha Rav vol. 7 Siman 4) defending Rav Ovadia (Shu"t Yechave Da'at 1:12) against a question by Rav Avraham Sherman ([http://www.daat.ac.il/daat/kitveyet/niv/yesodot1-2.htm Niv HaMidrashia vol. 18-19 Iyyar 5745]). He continues to point out that the Chazon Ish's illustration (Zeraim, Sheviit 23:5) of the Minhag evolving from the following Rambam, to the Shulchan Aruch, and then to Acharonim is only relevant to Ashkenazim, who did not accept the Shulchan Aruch's rulings on themselves and their descendants, unlike the Sepharadim.</ref> | | =Beracha= |
| | # According to the Shelah, when sacrificing oneself for Kiddush Hashem, one recites the Beracha "Lekadesh Shemo BaRabbim" - "ברוך אתה יקוק אלוקינו מלך העולם אשר קדשנו במצותיו וצונו לקדש שמו ברבים"<ref>Pitchei Teshuva Yoreh Deah 157:6, [http://www.hebrewbooks.org/pdfpager.aspx?req=22145&st=&pgnum=29 Shu"t Mimaamakim vol. 2 Siman 4]. See also [https://judaism.stackexchange.com/questions/22512/does-one-make-a-blessing-if-preparing-to-die-al-kiddush-hashem/22515#22515 Mi Yodea]</ref> |
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| === Chronology of Writings === | | = Chillul Hashem = |
| # Authorities are uncertain which work was written first, Kessef Mishneh or Beit Yosef. The number of cross citations from one book to another are too numerous in each direction to be convincing of one side or the other and, in fact, lead the Shulchan Gavoah<ref>Shulchan Gavoah (Klalim Siman 13)</ref> to determine that Rav Yosef Karo worked on both works simultaneously The Yad Malachi, however, argues that the Kessef Mishneh must have been completed after the Beit Yosef, because, in Kessef Mishneh, it says that the Shemitta is in year 5327, and in the end of Beit Yosef, it says the Sefer was completed in the year 5314. It's certainly possible, though, that he worked on both simultaneously and therefore referenced the Kessef Mishneh manuscript in Beit Yosef.<ref>Yad Malachi (Klalei HaKessef Mishneh 1-2)</ref> The Chidah disproves this claim, because the first printing of Beit Yosef was in 5310, and Kessef Mishneh was complete but not printed until the end of Rav Yosef Karo's life. As long as he was alive, he continued to work on the Sefer, and he passed away in middle of the printing endeavor.<ref>Shem HaGedolim (Sefarim, Maarechet Bet Ot 59, Maarechet Kaf Ot 50), Matnat Yado fn. 17. See Sdei Chemed (Klalei HaPoskim 13:28)</ref>
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| # Rav Yosef Karo wrote a commentary called Klalei HaGemara on the Sefer Halichot Olam, which discusses Klalei HaTalmud. The Beit David claims Maran wrote the Klalei HaGemara later in life after completing his other works, but the Yad Malachi<ref>Yad Malachi (Klalei Beit Yosef 42)</ref> thinks the reverse is more likely. The Chida<ref>Ein Zocher Lamed 14</ref> sides with the Beit David and adds that when Maran wrote his other Sefarim, he kept a list of Klalim that he extrapolated along the way and that eventually became Klalei HaGemara. <ref>Shem HaGedolim vol. 2 Ot Chaf 24. Matnat Yado fn. 110. In fn. 111 he quotes the Ein Zocher (ibid) who writes how the Kenesset HaGedolah did the same.</ref>
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| === Beit Yosef ===
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| # The Kenesset HaGedolah laments how sometimes the Beit Yosef will quote another Rishon quoting the Rambam, when the Rambam's ruling is already written explicitly. He suggests that the secondary source must have added an additional dimension to the idea to warrant its inclusion.<ref>Yad Malachi (Klalei Beit Yosef 35)</ref>
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| # Rav Yosef Karo usually rules stringently by Safek DeOraita, so it's astonishing when he doesn't.<ref>Yad Malachi (Klalei Beit Yosef 36)</ref>
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| # The Beit Yosef does not employ the mechanism of Kim Li to determine a ruling but rather, if none of the three Amudei Horaah elicits an opinion, he finds one of the commonly accepted Poskim ("Mefursamim") who did and rules like him. Some take issue with his exclusion of Kim Li in favor of his Amudei Horaah rule in monetary cases.<ref>Yad Malachi (Klalei Beit Yosef 38)</ref>
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| # When many Rishonim share a position, the Beit Yosef does not list off all of their names but rather shares it in the name of the most notable Posek who says it.<ref>Yad Malachi (Klalei Beit Yosef 40)</ref>
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| # According to the Kenesset HaGedolah, the style of the Beit Yosef is to collect sevarot, so sometimes opposite ideas will be separated by an "Aval" but not always, because his intention is to inform us of the spectrum of opinions and for the Posek to decide.<ref>Yad Malachi (Klalei Beit Yosef 41)</ref>
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| === Bedek HaBayit === | | =Non Jews= |
| # The emendations of the Bedek HaBayit were not always printed on the right Siman in Beit Yosef.<ref>Yad Malachi (Klalei Beit Yosef 39)</ref> | | # Although Bnei Noach are not obligated in Kiddush Hashem, they are permitted to give up their lives at will in such situations.<ref>Yabia Omer vol. 6 Yoreh Deah 13:12</ref> |
| # The Rama didn't see the Bedek HaBayit,<ref>Yad Malachi (Klalei Beit Yosef 39)</ref> because it was printed after he died.<ref>Elyah Rabbah 101:3, Birkei Yosef Yoreh Deah 286:2 and Orach Chaim 27:4 and 101, Shem HaGedolim vol. 2 "Bedek HaBayit," Sdei Cheemd Klalei HaPoskim 14:9), Matnat Yado ad loc.</ref>
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| # When faced with a Bedek HaBayit that permits something prohibited in the Beit Yosef, the Kenesset HaGedolah argues it doesn't indicate retraction: the Beit Yosef is a comprehensive compilation of all the opinions, so he was just filling it in but doesn't necessarily hold of it.<ref>Yad Malachi (Klalei Beit Yosef 37)</ref>
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| === Shulchan Aruch ===
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| ==== Purpose ====
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| # The intention of Maran and the Rama was for Shulchan Aruch to serve as a tool for review by those who have already learned the Tur and Beit Yosef. The purpose is not to rule from the sefer itself. The Sma<ref>Sma Hakdama</ref> laments how in his day, centuries ago, many people wanted to learn the entire Torah on one foot and would rule from the Shulchan Aruch alone. The Beit Yosef himself<ref>Shu"t Beit Yosef Even HaEzer Dinei Gittin Siman 4</ref> himself makes this point. As the Sdei Chemed<ref>Sdei Chemed KHP 13:2</ref> puts it, if you don't know the source you won't understand the din. The Acharonim, notably the Maharsha<ref>Chiddushei Aggadot Sotah 22a</ref>, term such mistaken people "destroyers of the world," but nowadays with the many commentaries on the page of Shulchan Aruch, there's a strong argument to be made that this isn't as relevant of a concern, because the reasoning and source will be explained among the commentators, as well.<ref>Pitchei Teshuva Yoreh Deah 242. Yad Malachi (Klalei Shulchan Aruch 1) and Matnat Yado ad loc.</ref>
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| ===== Audience =====
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| # The Kenesset HaGedolah postulates all rulings in the Beit Yosef are intended for all Jewish communities, while those in Shulchan Aruch are only intended for Eretz Yisrael. This would even be plausible to say between two contradictory statements in Shulchan Aruch itself.<ref>Yad Malachi (Klalei Shulchan Aruch 3)</ref>
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| ===== Inconsistencies with Beit Yosef =====
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| # Often times, Maran will omit from Shulchan Aruch a nunber of rulings cited in Beit Yosef, because, the Kenesset HaGedolah explains, he didn't find these rulings in those of other Poskim. They were cited in Beit Yosef, because the goal of Beit Yosef is to gather all the opinions. Others say he retracted his position<ref>Minchat Yitzchak vol. 8 Siman 31 extends to Rama also.</ref> While others yet insist that the content omitted is still accepted.<ref>Yad Malachi (Klalei Shulchan Aruch 4) and Matnat Yado ad loc.</ref>
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| # Sometimes, Maran records rulings or customs in Shulchan Aruch that do not appear in Beit Yosef, because he discovered them after it was printed.<ref>Yad Malachi (Klalei Shulchan Aruch 5) and Matnat Yado ad loc.</ref>
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| ===== Methodology & Writing Style =====
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| # According to the Sma, even though Maran shows astonishment regarding a certain Rishon's opinion, he still records it in Shulchan Aruch despite his question.<ref>See Rav Berachot, Chukot HaChaim Siman 51, and Kol HaChaim Mem 62 where Rav Chaim Palagi and the Ben Ish Chai discuss this further.</ref> The Kenesset HaGedolah does not seem to assume this way, though. Ultimately, the Sdei Chemed<ref>Sdei Chemed Klalei HaPoskim 13:4</ref> does insist that if something that Maran questioned in Beit Yosef is omitted from Shulchan Aruch, it is an indication of nonacceptance.<ref>Yad Malachi (Klalei Shulchan Aruch 7), Matnat Yado fn. 25</ref>
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| # If Maran stipulates that something is only permissible given a certain parameter yet he himself elsewhere writes that that parameter isn't necessary, his intention here is just to say that with this additional factor everyone is lenient.<ref>Yad Malachi (Klalei Shulchan Aruch 8)</ref>
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| # When Maran writes "דברי פלוני נראין," he concurs to rule stringently but not for that Posek's reasoning. Additionally, "ויש לאסור כסברא פלוני" means he rules that way and agrees with reasoning, too.<ref>Yad Malachi (Klalei Shulchan Aruch 9)</ref>
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| ===== Stam vaYesh and Yesh veYesh =====
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| See [[Tur#Stam vaYesh and Yesh veYesh]]
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| # If there's an added layer of distinction to be made, it will sometimes be appended as a Yesh Omrim to a Stam, not because it's a Machaloket but because the distinction wasn't exicit in the first opinion's presentation.<ref>Yad Malachi (Klalei Shulchan Aruch 6)</ref>
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| ==== Authorship ====
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| # A number of Acharonim, including the Maharikash, R' Shmuel Abuhab, and even Rav Chaim Vital claim or heard that Shulchan Aruch was written at the end of Rav Yosef part Karo's life, which accounts for contradictions and inaccuracies that crept in. They claim either he wrote it himself and was weak and old, or students wrote it for him or on their own. The printing dates suffice to trounce this claim. The Maharitatz writes that the Shulchan Aruch was written for laymen and Amei HaAretz, which caused the Yad Malachi to call attention to the introduction to Shulchan Aruch where Maran writes exactly not so and to the testimonies of the Ginat Veradim and Kenesset HaGedolah to the grand acceptance of Shulchan Aruch. Some argue the proof from the Hakdama is invalid, as it could be referring to one who uses both Shulchan Aruch and Beit Yosef. The Maamar Mordechai 38:4 defends the Maharitatz as being taken out of context.<ref>Yad Malachi (Klalei Shulchan Aruch 2), Matnat Yado ad loc</ref>
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| === Works Not Available to Rav Yosef Karo ===
| | =Further Reading= |
| # The Ra'ah's Bedek HaBayit was not available to Maran.<ref>Yad Malachi (Klalei HaTur 15)</ref>
| | * Yabia Omer vol. 6 Yoreh Deah Siman 13 - "בדין קידושי ה'" |
| # Maran never saw Piskei HaRiaz or Shiltei HaGibborim.<ref>Birkei Yosef Orach Chaim 188:2, Shem HaGedolim (Sefarim, Shiltei HaGibborim)</ref>
| | =Sources= |
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| == Further Reading ==
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| * Yad Malachi, especially the Machon Yerushalayim annotated edition
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| * [http://www.hebrewbooks.org/pdfpager.aspx?req=19979&st=&pgnum=24 Ohr LeTzion vol. 2 "Yesodot Darkei Horaah."]
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| * [http://www.hebrewbooks.org/56804 Ein Yitzchak vol. 3], by Rav Yitzchak Yosef | |
| * [http://www.otzar.org/wotzar/book.aspx?198570&pageid=19857000527 Orot HaTahorah], by [http://orotm.org/%D7%A8%D7%91-%D7%9E%D7%A1%D7%A4%D7%A8-3/ Rav Zecharia Ben Shlomo], page 475, "Darkei Horaah - LeShitat Sepharadim, Ashkenzim, veTeimanim"
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| == Sources==
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| {{Reflist|30em}} | | {{Reflist|30em}} |
| [[Category: Klalim]] | | [[Category: Yoreh Deah]] |
