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===Sephardim=== | ===Sephardim=== | ||
#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 Sephardic community following the Shulchan Aruch does not mean that the new Sephardic communities to settle there are independent of its rulings, because '''the Sephardic 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 | #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 Sephardic community following the Shulchan Aruch does not mean that the new Sephardic communities to settle there are independent of its rulings, because '''the Sephardic 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 Sephardim.</ref> | ||
#The first printing of Beit Yosef was such a success that Maran was unable to send Bedek HaBayit, his additions and revisions, to the printers in time for them to be included in the second printing, so it had to be printed as a separate sefer and then incorporated in later editions of Beit Yosef.<ref>Hakdama to Bedek HaBayit</ref> | #The first printing of Beit Yosef was such a success that Maran was unable to send Bedek HaBayit, his additions and revisions, to the printers in time for them to be included in the second printing, so it had to be printed as a separate sefer and then incorporated in later editions of Beit Yosef.<ref>Hakdama to Bedek HaBayit</ref> | ||
#The [[Chida]] writes how Maran had the Neshama of R' Yehudah Bar Ilay, who was "Rosh HaMedabrim beChol Makom"<ref>Shabbat 33b</ref>. His ruling were accepted throughout Eretz Yisrael, Turkey, Syria, Iran, etc, but not with respect to monetary matters. According to him, one who follows the stringencies of the Rama in Eretz Yisrael need not be rebuked, but one who follows the leniencies should be. The Panim Meirot says that an Ashkenazi who keeps the leniencies of the Shulchan Aruch needs Teshuvah, and the Chida says a Yerei Hashem should keep the stringencies of both.<ref>Shem HaGedolim (Sefarim, Tet 11)</ref> | #The [[Chida]] writes how Maran had the Neshama of R' Yehudah Bar Ilay, who was "Rosh HaMedabrim beChol Makom"<ref>Shabbat 33b</ref>. His ruling were accepted throughout Eretz Yisrael, Turkey, Syria, Iran, etc, but not with respect to monetary matters. According to him, one who follows the stringencies of the Rama in Eretz Yisrael need not be rebuked, but one who follows the leniencies should be. The Panim Meirot says that an Ashkenazi who keeps the leniencies of the Shulchan Aruch needs Teshuvah, and the Chida says a Yerei Hashem should keep the stringencies of both.<ref>Shem HaGedolim (Sefarim, Tet 11)</ref> | ||
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#Therefore, I decided to use the three pillars of Halacha upon which the entire Jewish nation is supported - the [[Rif]], [[Rambam]], and [[Rosh]]. | #Therefore, I decided to use the three pillars of Halacha upon which the entire Jewish nation is supported - the [[Rif]], [[Rambam]], and [[Rosh]]. | ||
#Where two of the three agree, the Halacha will follow them, except for the few places where all or the majority of Chachmei Yisrael disagree and result in the Minhag being the opposite. | #Where two of the three agree, the Halacha will follow them, except for the few places where all or the majority of Chachmei Yisrael disagree and result in the Minhag being the opposite. | ||
#If one of the three did not reveal his opinion, then we'll follow the eminent Chachamim who did voice an opinion on the matter. | #If one of the three did not reveal his opinion, then we'll follow the majority of the eminent Chachamim who did voice an opinion on the matter.<ref>Or Letzion (Introduction to volume 2) writes that if there's a machloket Rosh and Rambam and the Rif did not voice an opinion we follow the Rambam. However, [https://torahanytime.com/lectures/288674 Rav Yitzchak Yosef (Mikra Megillah 5784, min 20-21)] argues that even if it is a machloket Rosh and Rambam, we follow the majority of the rishonim as the Bet Yosef writes in his introduction. </ref> | ||
#In locations where there was already a pre-established Minhag to prohibit something, they should uphold it, as is elaborated in Perek Makom SheNahagu<ref>Pesachim 51a</ref> | #In locations where there was already a pre-established Minhag to prohibit something, they should uphold it, as is elaborated in Perek Makom SheNahagu<ref>Pesachim 51a</ref> | ||
He received much push back from Ashkenazi Poskim for his approach, but it is evident that he did not formulate it himself. Rather, he was working with a pre-existing tradition according to some.<ref>See Birkei Yosef (Choshen Mishpat 25:29) and the discussion on the [[Moroccan_Halacha#Shulchan_Aruch|Moroccan Halacha]] page</ref> | He received much push back from Ashkenazi Poskim for his approach, but it is evident that he did not formulate it himself. Rather, he was working with a pre-existing tradition according to some.<ref>See Birkei Yosef (Choshen Mishpat 25:29) and the discussion on the [[Moroccan_Halacha#Shulchan_Aruch|Moroccan Halacha]] page</ref> | ||
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#The emendations of the Bedek HaBayit were not always printed on the right Siman in Beit Yosef.<ref>Yad Malachi (Klalei Beit Yosef 39), Shem HaGedolim (Gedolim, Yud 165; Sefarim, Bet 31)</ref> | #The emendations of the Bedek HaBayit were not always printed on the right Siman in Beit Yosef.<ref>Yad Malachi (Klalei Beit Yosef 39), Shem HaGedolim (Gedolim, Yud 165; Sefarim, Bet 31)</ref> | ||
#The [[Rama]] didn't see the Bedek HaBayit,<ref>Yad Malachi (Klalei Beit Yosef 39). Rama Y.D. 286:1 implies he didn't see the Bedek Habayit as the Birur Halacha notes.</ref> because it was printed after he died. Neither did the Sma, [[Bach]], or Tosafot Yom Tov.<ref>Beit Shmuel 15, Shach (Yoreh Deah 34), Elyah Rabbah 101:3, Birkei Yosef Yoreh Deah 286:2 and Orach Chaim 27:4 and 101, Shem HaGedolim (Sefarim, Bet 31) and Menachem Tzion ad loc., Sdei Chemed Klalei HaPoskim 14:9), Matnat Yado ad loc.</ref> Some say the [[Taz]] didn't have the Bedek Habayit either.<ref>Pitchei Teshuva Y.D. 163:3 citing the Chatom Sofer. Taz Y.D. 168:36 also implies this as the Shaar Deah 168:11 notes.</reF> | #The [[Rama]] didn't see the Bedek HaBayit,<ref>Yad Malachi (Klalei Beit Yosef 39). Rama Y.D. 286:1 implies he didn't see the Bedek Habayit as the Birur Halacha notes.</ref> because it was printed after he died. Neither did the Sma, [[Bach]], or Tosafot Yom Tov.<ref>Beit Shmuel 15, Shach (Yoreh Deah 34), Elyah Rabbah 101:3, Birkei Yosef Yoreh Deah 286:2 and Orach Chaim 27:4 and 101, Shem HaGedolim (Sefarim, Bet 31) and Menachem Tzion ad loc., Sdei Chemed Klalei HaPoskim 14:9), Matnat Yado ad loc. Sama 35:10 and 92:20 implies he didn't have the bedek habayit.</ref> Some say the [[Taz]] didn't have the Bedek Habayit either.<ref>Pitchei Teshuva Y.D. 163:3 citing the Chatom Sofer. Taz Y.D. 168:36 also implies this as the Shaar Deah 168:11 notes.</reF> | ||
#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> | #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> | ||
#According to Rav Yosef Karo's son, some of the pamphlets of Bedek HaBayit were lost, which may account for contradictions between Beit Yosef and Shulchan Aruch, as the retracting statements never made it to the page. The [[Chida]] postulates that only 1/50 of the actual Bedek HaBayit is extant and adds that had they still be available, most of the objections raised against the Shulchan Aruch would be resolved.<ref>Shem HaGedolim (Gedolim, Yud 165; Sefarim, Bet 31)</ref> | #According to Rav Yosef Karo's son, some of the pamphlets of Bedek HaBayit were lost, which may account for contradictions between Beit Yosef and Shulchan Aruch, as the retracting statements never made it to the page. The [[Chida]] postulates that only 1/50 of the actual Bedek HaBayit is extant and adds that had they still be available, most of the objections raised against the Shulchan Aruch would be resolved.<ref>Shem HaGedolim (Gedolim, Yud 165; Sefarim, Bet 31), Shu"t Yosef Ometz 69)</ref> | ||
==Shulchan Aruch== | ==Shulchan Aruch== | ||
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#Kenesset HaGedolah, Elyah Rabbah, and Beit David write that the Shulchan Aruch and Rama accept the second Yesh. Yad Malachi (Klalei Shulchan Aruch 13) has a bunch of problematic examples and suggests that it's only applicable where there is no decisive line at the end indicating which to follow. For example, if the Halacha follows the second approach, why does Maran sometimes append a "Hachi Mistavra" to the second Yesh? Isn't the Klal sufficient to inform us that he accepts that position? Why tell us that it's logical also? The [[Chida]] (Birkei Yosef Orach Chaim 273:8) elucidates that Maran doesn't rule based on his own intellect but rather by the majority of the Poskim's. The Klal indicates which position was accepted by the Gedolei HaPoskim, and the addendum of "Hachi Mistavra" means that Maran himseld also though it logical. | #Kenesset HaGedolah, Elyah Rabbah, and Beit David write that the Shulchan Aruch and Rama accept the second Yesh. Yad Malachi (Klalei Shulchan Aruch 13) has a bunch of problematic examples and suggests that it's only applicable where there is no decisive line at the end indicating which to follow. For example, if the Halacha follows the second approach, why does Maran sometimes append a "Hachi Mistavra" to the second Yesh? Isn't the Klal sufficient to inform us that he accepts that position? Why tell us that it's logical also? The [[Chida]] (Birkei Yosef Orach Chaim 273:8) elucidates that Maran doesn't rule based on his own intellect but rather by the majority of the Poskim's. The Klal indicates which position was accepted by the Gedolei HaPoskim, and the addendum of "Hachi Mistavra" means that Maran himseld also though it logical. | ||
#Ginat Veradim interestingly posits you can choose. | #Ginat Veradim interestingly posits you can choose. See Yabia Omer (vol. 6 Choshen Mishpat 2, vol. 7 Even HaEzer 13:2 at the end) about when one can rely on this. | ||
See [http://www.hebrewbooks.org/pdfpager.aspx?req=7658&st=&pgnum=303 Yafeh LeLev Orach Chayim vol. 1 159:6] who adds another challenging citation to the Yad Malachi's list, [http://www.hebrewbooks.org/pdfpager.aspx?req=7976&st=&pgnum=297 Petach HaDevir vol 3 pg 296 col 3], and Sdei Chemed (Klalei HaPoskim 13:14-15), as cited in Matnat Yado fn. 71.</ref> | See [http://www.hebrewbooks.org/pdfpager.aspx?req=7658&st=&pgnum=303 Yafeh LeLev Orach Chayim vol. 1 159:6] who adds another challenging citation to the Yad Malachi's list, [http://www.hebrewbooks.org/pdfpager.aspx?req=7976&st=&pgnum=297 Petach HaDevir vol 3 pg 296 col 3], and Sdei Chemed (Klalei HaPoskim 13:14-15), as cited in Matnat Yado fn. 71.</ref> | ||
#"Yesh veYesh" means "Yesh Omrim X veYesh Omrim Y," but "Yesh vePloni," such as "Yesh Omrim X, veHaRambam Omer Y" would not qualify under this rule; rather, Maran is highlighting the opinion of a Yachid that we do not follow.<ref>Yad Malachi (Klalei Shulchan Aruch 14</ref> Some might argue that when both Yesh Omrim's begin with a vav - "'''ve'''Yesh Omrim X, '''ve'''Yesh Omrim Y" - the rule does not apply.<ref>Magen Avot Orach Chaim 422:2 fn. 308 s.v. Vegam.</ref> | #"Yesh veYesh" means "Yesh Omrim X veYesh Omrim Y," but "Yesh vePloni," such as "Yesh Omrim X, veHaRambam Omer Y" would not qualify under this rule; rather, Maran is highlighting the opinion of a Yachid that we do not follow.<ref>Yad Malachi (Klalei Shulchan Aruch 14</ref> Some might argue that when both Yesh Omrim's begin with a vav - "'''ve'''Yesh Omrim X, '''ve'''Yesh Omrim Y" - the rule does not apply.<ref>Magen Avot Orach Chaim 422:2 fn. 308 s.v. Vegam.</ref> | ||
#When Maran presents the first opinion in the plural "Yesh Omrim" (יש אומרים) and the second in the singular "Yesh Mi SheOmer" (ויש מי שאומר), the Ginat Veradim and Kenesset HaGedolah understand that he accepts the first position and is implying that the latter one is a Yachid.<ref>However, the Yad Malachi (Klalei Shulchan Aruch 15) feels the Kenesset HaGedolah eventually retracted his position in his Klalim, while others argue that he misunderstood the second Klal and there was never a retraction (Matnat Yado ad loc.). It's noteworthy how Maran presents a Yesh Omrim veYesh Mi SheOmer in Choshen Mishpat 213 and the Chida (Birkei Yosef Orach Chaim 561) treats it like a regular Yesh veYesh.</ref> | #When Maran presents the first opinion in the plural "Yesh Omrim" (יש אומרים) and the second in the singular "Yesh Mi SheOmer" (ויש מי שאומר), the Ginat Veradim and Kenesset HaGedolah understand that he accepts the first position and is implying that the latter one is a Yachid.<ref>However, the Yad Malachi (Klalei Shulchan Aruch 15) feels the Kenesset HaGedolah eventually retracted his position in his Klalim, while others argue that he misunderstood the second Klal and there was never a retraction (Matnat Yado ad loc.). It's noteworthy how Maran presents a Yesh Omrim veYesh Mi SheOmer in Choshen Mishpat 213 and the Chida (Birkei Yosef Orach Chaim 561) treats it like a regular Yesh veYesh.</ref> | ||
#If both are singular, i.e. "Yesh Mi SheOmer....veYesh Mi SheOmer," it's the same as a regular Yesh vaYesh.<ref>Yabia Omer (vol. 7 Even HaEzer 13:2)</ref> | |||
#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> | #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> | ||
#When Maran appends "ויש חולקים" to a Halacha, some say he means to disagree with the position he just presented and side with the Cholkim, while others disagree and say he would have written it as Yesh Omrim if that was the case.<ref>Yad Malachi (Klalei Shulchan Aruch 10)</ref> | #When Maran appends "ויש חולקים" to a Halacha, some say he means to disagree with the position he just presented and side with the Cholkim, while others disagree and say he would have written it as Yesh Omrim if that was the case.<ref>Yad Malachi (Klalei Shulchan Aruch 10)</ref> | ||
