Wednesday's Weird But True Legal Cases - Vol XXXVII

Tonight's weird (but true) legal case analysis asks the question - can a bouncer who was injured trying to keep people out of a New Year's Eve party recover damages against the party promoter?

In the case of Vetrone v. Ha Di Corp., 22 A.D.3d 835, 803 N.Y.S.2d 156 (2d Dept. 2005), the Appellate Division dealt with a matter in which a security guard was injured when angry ticketholders were denied entry to a New Year's Eve party. As discussed by the court in its decision, in December 2000 a restaurant entered into an agreement with a 19 years old and two of his friends, to organize and promote a New Year's Eve party at the restaurant. The organizer and his friends prepared promotional materials and sold a number of advance tickets for the event, and were to receive $20 for each $65 advance ticket sold. Although the organizer could not recall the precise number of advance tickets sold, he testified without contradiction that he and his friends received between $3,900 and $4,200 for advance ticket sales, an amount corresponding to profit on the sale of between 196 and 210 prepaid tickets.

The organizer then told the restaurant owner that there would be a large number of guests, and both agreed that it would be necessary to hire security. As a result, the plaintiff Stephen Vetrone and another individual were hired to provide security for the event.

On the night of the party, notwithstanding the large number of prepaid tickets sold, the restaurant also admitted non-ticketholders at the door for $100 per person. At approximately 11:30 P.M., the owner was informed by his staff that there were 130 to 140 patrons in the restaurant, and he decided that the establishment was “overcrowded.” He therefore directed Vetrone not to allow anyone else to enter. At that time there were still approximately 50 to 100 people, including many prepaid ticket holders, standing outside, with approximately 30 to 40 of them waiting in line at the door. According to Vetrone, an unidentified associate of the organizer yelled at the crowd from inside the restaurant, cursing and telling people that they should go home and that no one else would be admitted. The crowd grew agitated and, when Vetrone tried to close the front door, one of the prepaid ticket holders who had been standing in the doorway, refused to move out of the way and attempted to walk past him. Vetrone physically blocked his path and a scuffle ensued during which Vetrone allegedly sustained injuries after he was attacked by individuals in the crowd. The police intervened and closed the restaurant for “apparent overcrowding and underage drinking.”

In discussing the possible liability of the promoters and restaurant owner, the court noted that

There was evidence that [the organizer and his associates] knowingly sold tickets to a significantly greater number of people than the venue could accommodate, and were physically present at the premises helping to control the event when the incident occurred. Moreover, [] the owners of the restaurant, knew of its 150-person capacity, yet not only permitted [the organzier] and his associates to sell prepaid tickets to far more individuals than the restaurant could accommodate but also admitted non-ticketholders at the door.

The court then concluded that

Vetrone, who was present because he was hired as a security guard for the New Year's Eve party, reasonably had the right to expect that [] the event's organizer and promoter, and [] the restaurant's owners, would not so overbook the event as to require him, acting virtually alone, to face a large crowd of angry ticketholders who paid to attend the party, but were unexpectedly and rudely denied entry and told to go home. Nor do we agree with the organizer [] that, in effect, he owed no duty to Vetrone because, as a security guard, Vetrone necessarily assumed the risk that the event would be so overbooked as to put him in the position of having to face and turn away this large crowd seeking entry on the basis of prepaid tickets.

One other interesting point was that the defendants tried to argue that it was not foreseeable that "when, only a half-hour before midnight, a large number of people were roughly and without explanation refused entry to a New Year's Eve party for which they had already paid, some in the group would become unruly and even violent."

The court's holding dispelled this argument, as the court stated that:

[U]nder circumstances of this case, we cannot conclude that, as a matter of law, the assault upon Vetrone as he tried to close the door of the restaurant on a crowd of people holding prepaid tickets was far removed from, or an unforeseeable consequence and independent of, the conduct of the [organizer and restaurant owner], in negligently overbooking the event and in then directing the unceremonious denial of admission to this large crowd of people who were there to attend a New Year's Eve party for which they had already paid.

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Tuesday's Thoughts on the Daf - Bava Kamma 2

Today the daf yomi cycle began its study of Seder Nezikin (probably best translated as the tort laws). However, before getting into Bava Kamma, I would like to first say over a quick vort which I heard last night at a siyum on Seder Nashim.

During the siyum, R' Dovid Spiegel said a vort in the name of the Vilna Gaon on the word Siyum. The letters of this word are all letters whose extensions are equal to the principle number. Samech is spelled Samech (60) Mem, Cuf (40 +20). Yud is spelled Yud (10) Vuv, Daled (6+4). Vuv is spelled Vuv (6) Vuv(6) and Mem is spelled Mem (40) Mem (40). R' Spiegel related that the nigla (revealed) portion of the letters is equal to the nistar (hidden) portion of the letters.

R' Spiegel then said that when making our siyum, our spouses who have stood in the background and supported us in the learning efforts get credit for our learning as well. I certainly owe my wife for my 11+ years of Daf Yomi. Besides letting me learn out five nights a week, she also was there to remind me that I needed to the daily daf when I was coming home routinely after 11 PM earlier in the my legal career. To this I say, the reward is yours too.

But on to Bava Kamma. One interesting point which I wanted to discuss is a Rashi which explains the concept of Keren (horn), one of the Avos Nezikin. The gemara quotes a number of pesukim which support the concept that keren is one of the Avos Nezikin. The gemara asks on 2b, why do we even need pesukim - isn't it obvious that an ox which gores is a category of Nezikin? The gemara answers that the pesukim are there to teach that the difference in financial penalties for damage caused by an ox which is tam (1/2 nezek) or mu'ad (full nezek) is applicable, regardless of whether the ox gored with an attached or a detached horn.

But how does an ox gore with a detached horn? Rashi (d'h Ella) explains that the case of detached horn involves an ox which picks up the detached horn in its teeth and uses that horn to gore. I might have thought that only in such a situation would there be a difference between tam and mu'ad (but not where an ox gores with its attached horns). Therefore the gemara uses the pesukim to teach that the varying degrees of penalty apply in both scenarios.

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Max Kellerman's Monday Musings Vol XXXVI - Mangenius No More

Today's Max Kellerman show served largely as a post mortem for the Jets 2008 season. During the limited time in which I was able to listen to the show today, Max methodically broke down the Jets season, albeit without gloating that the Jets were eliminated while the Giants have moved on to the post season. (The actual gloating was reserved for the Cowboys as Max and the crew of the program at one point in the show indicated that they were "taking a break from Mangini to have a hearty laugh at Tony Romo and the Cowboys." And then they all actually laughed before returning to the Jets). The following is my take on the portions of the show which I was able to listen to today.

The Kellerman show actually started late as the Jets had the audacity to schedule the Woody Johnson/Mike Tannenbaum press conference for 10 AM, causing 1050 ESPN Radio to preempt the start of the show to carry the press conference live. When Max was finally given a chance to speak, he started with the statement that "on paper" the Jets were better off with Favre than Chad Pennington because Favre had a better history of staying healthy and had superior arm strength to Chad. But the games aren't played on paper (my line not his) and in Max's assessment, Chad had a better season then Brett Favre and also managed to stay healthy. Thus the decision turned out to be a poor one as Favre's arm strength diminished and he made poor decisions under pressure, causing some of the interceptions.

At this point, I need to take my leave of the Kellerman and Crew take on Favre as the show (and Robin Lundberg in particular) were a little too quick to say that all of Favre's INTs came from poor decision making. When a ball sails through a receiver's hands, is tipped up in the air by the receiver or is thrown to a spot on the field but the receiver breaks off his route early, its not a poor decision. Yes Favre certainly threw his share of "funballs" (to use a Lundbergian term) but quite a few of the picks were not the result of a bad decision.

Max also had some praise for the Jets, specifically related to the free agent acquisitions. Max talked about how Tannebaum had built the team with solid defensive additions as well as by addressing the offensive line. He even admitted what most Jets fans are probably thinking - that at the time the Favre pick up was a good move, but in retrospect it was a mistake.

I missed some of the shows last week, so I am unaware whether Max had his annual rant about how he disliked Chanukah as a child because his gentile friends all got great presents and he had book night or sock night. (Don't even get me started on the over commercialization of Chankah and why people assume there should be eight nights of presents - the miracle was that the oil lasted and that a small band of Jews were able to best the Syrian Greeks. There are no presents in the story nor in any Code of Jewish law, but I digress). Max did mention today (in response to a question from Giants' DL Justin Tuck) that it was his daughter's first Chanukah and that he "has not been able to demoralize her with sock night or book night." Part of me wonders whether this is all for show.

The firing of Mangini and the discussion on the show about how when the Jets were 8-3 Mangini was Mangenius, but by the end of the season he was (to quote Steve Serby of the NY Post) "Cangini" has an interesting link to today's daf yomi. On the last page of Talmud Kiddushin (82 for those of you keeping score at home), the Gemara talks about various trades or occupations which one should or should not teach one's child. One of the Tannaim mentioned (R' Meir) states that one should always teach his child a "clean and easy trade" (this line is interpreted by the Rishonim and Achronim in multiple ways which are not relevant here) because in every trade there are wealthy and poor and being poor is not a result of the trade but according to one's merit. People look at others and assume that because they are employed in a certain profession they are wealthy or indigent. However, its not merely the job one does which determines his degree of financial success, its also the level of dedication and the help he has from upstairs.

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Sunday Night Suds - Holiday Porter

This week's Sunday Night Suds review continues the holiday theme by looking at another of the Samuel Adams limited editions - the Holiday Porter.

As opposed to the Samuel Adams Honey Porter, the gents at Beer Advocate classify the Samuel Adams Holiday Porter as an American Porter (for more details on the Honey Porter and the general definition of a classic English Porter, please click here http://kosherbeers.blogspot.com/2008/09/sunday-night-suds-samuel-adams-honey.html ). In distinguishing the American Porter class of beers, the experts at BA explain:

Inspired from the now wavering English Porter, the American Porter is the ingenuous creation from that. Thankfully with lots of innovation and originality American brewers have taken this style to a new level. Whether it is highly hopping the brew, using smoked malts, or adding coffee or chocolate to compliment the burnt flavor associated with this style. Some are even barrel aged in Bourbon or whiskey barrels. The hop bitterness range is quite wide but most are balanced. Many are just easy drinking session porters as well.

Unlike the beers with exotic additives in the BA review, this American Porter derives its flavor completely from the hops and malts added to the brew. In contrast, the Saranac Caramel Porter (previously reviewed here http://kosherbeers.blogspot.com/2008/03/sunday-night-suds-saranac-caramel.html) derives its flavor from caramel which is added to the brew process.

Like many of the darker beers, this is not something that you would just hand to someone looking to try beer for the first time. The beer itself pours nearly black and has has a deep complex flavor. The alcohol content also is on the high side as it is 5.8% abv. I enjoyed mine tonight by itself in a pilsner glass. I would not suggest pairing this with dinner fare, although it might do well as an accompaniment to chocolate babka.

Samuel Adams Holiday Porter is under the Kosher Supervision of the Star-K. To see what the experts on Beer Advocate think about Holiday Porter, please follow this link - http://beeradvocate.com/beer/profile/35/20564.

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

Finally, if you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

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Thursday's Parsha Tidbits - Parshas Mikeitz

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

The Torah recites in Bereishis 42:1 that Ya'acov saw that despite the famine in Cana'an that there was food in Egypt. So Ya'acov tells the brothers to go to get food and they went. Rashi notes on 42:3 that the brothers had previously been called the sons of Ya'acov or of Israel, but in this pasuk they are called the brothers of Yosef. Rashi explains that the brothers now felt bad about the situation with Yosef and decided that if they found him as a slave in Egypt, they would spend whatever sums of money were necessary to buy him out of slavery.

R' Frand then quoted a sefer called Tiv HaTorah by R' Gamliel Rabinovich where the following question was asked - at this point the brothers are about to go through terribly agonizing experiences, isn't it ironic that since they have now begun to do teshuvah - why should they now have to go through all the emotional stress? R' Rabinovich then quoted a Sfas Emes about how Yosef had the test of the wife of Potiphar and Yosef ws able to withstand it and as a result he was called Yosef HaTzaddik. What happens immediately after this event? Yosef gets thrown into jail. Is this the reward for his actions? The Sfas Emes explains that if a person does an act of righteousness and shows that he wants to do teshuva, then Hashem will help him acheive teshuva gemura - and through the next event he will emerge with full teshuva. Yosef needed to do teshuva for telling lashon harah about the brothers. Once he stood up to the test of Potiphar's wife, then Hashem knew that he was ready for teshuva gemura and could withstand the prison from which he would emerge with full teshuva.

R' Rabinovich relates that the same concept applies to the brothers of Yosef. Once they had accepted on themselves to do teshuva, they were ready to go through the events which would cause them to become fully forgiven.

R' Frand said that sometimes we see people decide that they want to do teshuva and begin to take steps to keep the mitzvos such as closing their businesses on shabbos and keeping the laws as required. At this point they may encounter new problems in business or family life. (R' Frand related that this happens frequently enough that it is not a coincidence). These problems which occur (much like the events which happened to Yosef and the brothers after each chose to begin the path of teshuva) are Hashem's way of speeding up the process so that we can emerge on the other end with teshuva gemura.

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In Bereishis chapter 41, Pharaoh has his dreams and Yosef is called out of prison and he comes to Pharaoh and interprets the dreams, explaining that there will be seven years of plenty followed by seven years of famine. True to form there are seven years of plenty and then the seven years of famine begin (Bereishis 41:53-54). R' Yitzchak Ya'acov Reiness (the Lita Rav) asked - when the seven good years came, the Torah does not say "as Yosef predicted." However, when the bad years began the Torah recites at 41:54 that they came as Yosef predicted. Why does the Torah only remind us that Yosef had correctly predicted the lean years?

R' Mordechai Kaminetzky tells a story about Albert Einstein which explains the phenomenon. When Einstein explained the theory of relativity to the French, he quipped that if the theory bears out, the French will say that I am a citizen of the world, while the Germans will say that I am a citizen of Germany. However, if the theory fails, the French will say that I am a German and the Germans will say that I am a Jew. This is indicative that people may say positive things when events go well, but they know how to lay the blame when things go badly.

R' Frand closed with a story he heard from R' Abish Brodt about a reception in honor of R' Wein in Detroit which included many important people including the Editor of the Detroit Free Press. The Editor had a history of being very pro-Israel and he asked for (and received) an opportunity to address the gathering.

The Editor told the following story - when his mother came to this country from Ireland in the 1920s, she took a job as a housekeeper for a Jewish family who happened to live next door to a shul. She knew that the family was going out of town and would not be returning until December 23rd. She was concerned that getting back this late, they would not be able to get a "proper tree." She felt bad for them as they had always taken such care of her, so she went out and bought a tree and trimmed it with green and red lights and tinsel and put it in the front of the house.

The family came home and saw the tree and had two possible ways of dealing with the situation. Either they could demand that the tree be removed immediately, or they could deal with it much more sensitively. The head of the family chose the second approach - telling the woman that her act had been an incredibly thoughtful one which should be rewarded. He told her that he was going to give her a bigger bonus because of her actions and gave her a $50 bill (quite sizable for the 1920's). He then told her that unfortunately, there is no tree in our religion and that they could not keep it in their home, but still her act had been very thoughtful and they were touched.

The Editor related that his mother always spoke warmly about the Jews and the Tree and how respectfully they had treated her. He felt that this had influenced his view of Jews and continued to have an impact so many years later.

If we continually strive to make a kiddush Hashem (sanctify Hashem's name through our actions) then people can look positively on our actions and not only mention us when things go wrong.

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Wednesday's Weird But True Legal Cases - Vol XXXVI

Tonight's weird (but true) post was inspired by the recent conviction of OJ Simpson in relation to his use of force to "reclaim his property."

Under New York's Penal Law §155.15(1), a person who is accused of larceny can assert as a defense that the property was taken "under a claim of right made in good faith." In People v. Reid, 69 N.Y.2d 469, 515 N.Y.S.2d 750 (1987) New York's highest court examined whether the defense could be used in a robbery situation (defined as "when in the course of committing a larceny, he uses or threatens the immediate use of physical force").

In Reid, the court examined two fact patterns (the appeal involved two cases with similar facts which raised similar issues of law). In one of the cases, the defendant had taken money at gunpoint which he claimed was owed to him by the victim. In the other matter, the criminal defendant also took forcibly took cash (although without the threat of a gun) from the victim who he claimed owed him money.

In determining whether the defense was available, the court noted the logic used by other states, explaining that:

Defendants' general contention is not without support. Several jurisdictions have held that one who acts under a claim of right lacks the intent to steal and should not be convicted of robbery. That logic is tenable when a person seeks to recover a specific chattel: it is less so when asserted under the circumstances presented in these two cases: in Reid to recover the proceeds of crime, and in Riddles, to recover cash to satisfy a debt.

Ultimately, the court in Reid determined that the claim of right defense was not available when money was taken by force. The court did leave the door open to the use of the defense in cases involving specific items, stating:

We need not decide the quite different question of whether an individual who uses force to recover a specific chattel which he owns may be convicted of robbery. It should be noted, however, that because taking property “from an owner thereof” is an element of robbery, a person who recovers property which is his own (as compared to the fungible cash taken to satisfy a claimed debt in the cases before us) may not be guilty of robbery.

The question of the taking of a specific object by force came up in a slightly different context on the bar mitzvah of Reid in the case of People v. Brown, 185 Misc.d 326, 711 N.Y.S.2d 707 (Crim. Ct. N.Y. Cty. 2000). In Brown, the defendant was accused of unauthorized use of a vehicle in the third degree. As noted by the court, unauthorized use:

[I]s in essence a kind of larceny statute specially adapted for car theft. The Unauthorized Use statute applies where a defendant takes a car for a "joyride"--that is, where the defendant takes or uses a car, however briefly, knowing that he does not have the consent of the car's owner. Unauthorized Use differs from classical larceny chiefly in that the crime of Unauthorized Use can be committed even where defendant does not intend to permanently deprive the owner of the car; it is sufficient that defendant use the car for only a short period.

The facts in Brown were certainly closer to the fact pattern which the court hypothesized in Reid. In Brown the criminal defendant had paid $6,000 as a down payment on a car and then made subsequent monthly payments. He had the car registered in his girlfriend's name and they shared the use of the vehicle. At some point later the relationship between the two became strained and he was denied access to the car. Believing that he still had a right to the vehicle, he jumped in the car and drove it in a light pole as "if I can't have it, no one can" protest. He was then charged with the unauthorized use based on the girlfriend's assertion that Brown had bought the car for her for a present and that his use was without permission.

In determining that Brown was not guilty of unauthorized use, the court explained:

[I]t is undisputed that defendant Brown truly believed he had a right to use the car on the day in question. Moreover, as previously noted, there was at the very least a colorable, good faith basis for that belief because defendant paid for the car and because, for many months, Ms. Lindo had permitted defendant to use the car whenever he wanted. It is admittedly true that legal title to the car was held by Ms. Lindo and her father, and that Ms. Lindo had a very different understanding of the agreement she and defendant had struck concerning the car's use. Nevertheless defendant did believe in good faith that he was entitled to use the car on the day in question. Accordingly, he is not guilty of Attempted Unauthorized Use of a Vehicle. Any other verdict would elevate to the level of a crime what was in truth a petty civil dispute between Mr. Brown and Ms. Lindo over the precise terms of their vague and informal agreement to share the use of the car.

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Tuesday's Thoughts on the Daf - Kiddushin 76

Kiddushin 76 continues the Asarah Yuchsin theme of examining suspect classes and explaining the reason why they were prevented from marrying into mainstream klal yisrael. Towards the top of Kiddushin 76a there is a discussion about kusim in which the "yesh omrim" (later defined as R'Eliezer) states that they are not permitted to marry because they are not experts in "dikdukei mitzvos".

In proving this point, the gemara cites to a dispute involving matza made by kusim. The Tanna Kamma states that matza made by a kusi is permitted to be eaten on pesach while R' Eliezer states that it may not be eaten. Rashi explains that on the first night of pesach one can eat matza made by non-Jews provided that he eats a kizayis of "shmurah matza" at the end of the meal. However, the matza made by a kusi is acceptable according to R' Eliezer as the kusim are experts in the laws of shmurah matza (citing to a gemara in Pesachim 40a).

On 76b, the gemara relates a story involving a dispute between R' Bibi and R'Adda bar Ahva's landlord (who was the child of a male convert and a Jewish woman) over who should have a position of authority in the city. The story is noteworthy for two reasons. First, there is a great punchline where R' Adda argues successfully that the landlord should be permitted to hold a position of authority - the gemara remarks that whomever takes in a talmid chacham as a boarder would be praised if they take in one like R'Adda bar Ahva who was able to argue successfully on his behalf.

The other thing I find interesting is on more of a personal level. The gemara relates that the landlord was given civil responsibilities. Rashi includes among those civil jobs as being in charge of "Turzina." The Likutei Rashi explains that Turzina involved watching the weapons. V'hameivin Yavin.

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Sunday Night Suds - Samuel Adams Old Fezziwig Ale

This week's Sunday Night Suds ventures into the holiday brews and looks at Samuel Adams Old Fezziwig Ale. Sounds awful, but tastes incredible.

I first encountered the Old Fezziwig Ale when my friend Rabbi Dan R. told me that he was going to Costco to buy a Samuel Adams winter case (24 bottles - six varieties) and asked me whether I would be interested in splitting it with him. This was a few years back and I had never heard of most of these varieties, but since the Star-K had them on the approved list I figured that it would be a good way to broaden my beer appreciation so I gave him the green light.

When I took home my half of the box, I have to admit to being skeptical about the Old Fezziwig Ale. Beer brewed with cinnamon, ginger and orange peel just sounded a little too bizarre to me. Still, I only was given two from the box, so I figured that worst case scenario I would just find someone to give the other away to if I did not like it. Boy was I surprised.

The Old Fezziwig Ale is a little bit of a misnomer since it does not really taste much like an ale. if anything it seems to lean toward porter in my opinion. Still, the flavors really work together to create a beer with a rich body and some sweetness, but without being over the top. There is a strong presence of malt and the spice enhances the flavor so that even someone who does not like the darker beers can appreciate it. My wife stays away from the caramel and chocolate hopped beers as she is not a big fan of their heavy flavor, but the Old Fezziwig is an exception for her due to its well balanced flavor.

So what would I have it with? It goes well with tomato based sauces or glazed poultry. This year's version comes with a suggestion that you substitute the Old Fezziwig for milk and have it with gingerbread cookies. Now if I can only convince Sarah to make ginger snaps...

Old Fezziwig comes in the Samuel Adams Winter Selections boxes (either 12 of 24 pack cases). I have been unable to locate it in six or twelve packs of its own. It has a high alcohol content (5.9% abv) but you don't really taste that in the beer.

Samuel Adams Old Fezziwig Ale is certified kosher by the Star-K. For the experts' take on the Old Fezziwig, click here http://beeradvocate.com/beer/profile/35/1881.

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

Finally, if you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

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Thursday's Parsha Tidbits - Parshas Vayeishev

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

Parshas Vayeishev contains one of the more famous biblical stories - the brothers' sale of Yosef. As detailed in Bereishis 37:18-36, the Torah relates that originally the brothers wished to kill Yosef, but they were persuaded by Reuven to put him in a pit. In pasuk 22, the Torah states that Reuven told them to put Yosef in the pit "so that he could rescue [Yosef] and return him to their father." Rashi states that the Torah was actually testifying that this was Reuven's intention.

When Reuven returns to the pit he sees that Yosef is no longer there. Rashi on pasuk 29 offers two explanations as to why Reuven was not there when the brothers sold Yosef. The first explanation is that the brothers had taken shifts assisting their father and that the sale took place during Reuven's shift with his father. The second explanation offered by Rashi is that Reuven was fasting and seeking Heavenly forgiveness for his act in Bereishis 35:22 of moving his father's bed out of Bilhah's tent and into Leah's.

R' Frand asked in the name of the Adir Ya'acov - since the incident when Reuven moved the tent happened nine years prior to the sale of Yosef, why was Reuven involved with fasting and penitence? Surely he had not been doing these acts for the last nine years!

R' Frand answered that the Adir Ya'acov explained that Reuven had an epiphany when he saw what his brothers sought to do to Yosef. He realized that the brothers believed they were doing the right thing in proposing to kill Yosef as they were unable to distinguish between mitzva and meesa. How did this happen? Because the brothers were so blinded by jealousy that they lacked the ability to look at the situation objectively. Reuven then began a course of introspection, looking at whether his action in moving the bed was truly for the right reasons, or perhaps only for his own purposes. At once, Reuven left his brothers and sought atonement for that act.

We see another example in the parsha of the importance of acting without influence or thoughts of one's own best interests. When Tamar is to be taken out to be killed at Bereishis 38:24-26, she sends out a message to Yehuda that the father of her unborn children owns these possessions. Yehuda then stands up and states that she is correct ('tzadka memeni"). R' Frand explained that Yehuda could have stood silent or allowed the court case to drag on for months before a "key piece of evidence" disappeared. Yehuda could have rationalized these acts as necessary to prevent chillul Hashem or embarrassment for his father. Yehuda did not think of his own interest and stood up and stated that Tamar was correct.

R' Frand then quoted the Targum Yonasan Ben Uziel on Bereishis 49:8 that Yehuda was rewarded with the kingship of Israel because he stood up and stated that Tamar was correct. As a result his children became kings and the Jews became known as Yehudim. The reason this quality was so valued is that a king possesses great power, but [as noted by Uncle Ben] "with great power comes great responsibility." Yehuda demonstrated that he could act without thinking of his own interests. As such he was rewarded with the melucha.

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Wednesday's Weird But True Legal Cases - Vol XXXV

Tonight's weird (but true) legal case takes a look at one of the myriad of bankruptcy cases involving victims of a Ponzi scheme. But rather than just examining the johnny come latelies, I thought that it would be apropos to look at the original Ponzi bankruptcy matter.

In Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924) the Supreme Court of the United States reviewed six suits in equity brought by the trustees in bankruptcy of Charles Ponzi to recover payments made by Ponzi within four months prior to the filing of the petition in bankruptcy on the ground that they were unlawful preferences.

The case itself contains the fascinating details of Ponzi's history, as the Court noted:

The litigation grows out of the remarkable criminal financial career of Charles Ponzi. In December, 1919, with a capital of $150, he began the business of borrowing money on his promissory notes. He did not profess to receive money for investment for account of the lender. He borrowed the money on his credit only. He spread the false tale that on his own account he was engaged in buying international postal coupons in foreign countries and selling them in other countries at 100 per cent. profit, and that this was made possible by the excessive differences in the rates of exchange following the war. He was willing, he said, to give others the opportunity to share with him this profit. By a written promise in 90 days to pay them $150 for every $100 loaned, he induced thousands to lend him. He stimulated their avidity by paying his 90-day notes in full at the end of 45 days, and by circulating the notice that he would pay any unmatured note presented in less than 45 days at 100 per cent. of the loan. Within eight months he took in $9,582,000, for which he issued his notes for $14,374,000. He paid his agents a commission of 10 per cent. With the 50 per cent. promised to lenders, every loan paid in full with the profit would cost him 60 per cent. He was always insolvent, and became daily more so, the more his business succeeded. He made no investments of any kind, so that all the money he had at any time was solely the result of loans by his dupes.

By July 1st, Ponzi was taking in about $1,000,000 a week. Because of an investigation by public authority, Ponzi ceased selling notes on July 26th, but offered and continued to pay all unmatured notes for the amount originally paid in, and all matured notes which had run 45 days, in full. The report of the investigation caused a run on Ponzi's Boston office by investors seeking payment, and this developed into a wild scramble when, August 2d, a Boston newspaper, most widely circulated, declared Ponzi to be hopelessly insolvent, with a full description of the situation, written by one of his recent employees. To meet this emergency, Ponzi concentrated all his available money from other banks in Boston and New England in the Hanover Trust Company, a banking concern in Boston, which had been his chief depository. There was no evidence of any general attempt by holders of unmatured notes to secure payment prior to the run which set in after the investigation July 26th.

The money of the defendants was paid by them between July 20th and July 24th and was deposited in the Hanover Trust Company. At the opening of business July 19th, the balance of Ponzi's deposit accounts at the Hanover Trust Company was $334,000. At the close of business July 24th it was $871,000. This sum was exhausted by withdrawals of July 26th of $572,000, of July 27th of $228,000, and of July 28th of $905,000, or a total of more than $1,765,000. In spite of this, the account continued to show a credit balance, because new deposits from other banks were made by Ponzi. It was finally ended by an overdraft on August 9th of $331,000. The petition in bankruptcy was then filed. The total withdrawals from July 19th to August 10th were $6,692,000.

The decision itself involving the claims for voiding a preference is unremarkable. The reported criminal cases in which he was charged in state and federal court (he pleaded guilty in federal court less than two months after being indicted) are also not earth shattering. But seeing how Ponzi built his house of cards is fascinating (sort of like watching a train wreck occur, but without the blood).

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Tuesday's Thoughts on the Daf - Kiddushin 69

Kiddushin 69 contains the start of the fourth perek in Kiddushin, Asarah Yuchsin, which details the various classes who came to Israel from Bavel with Ezra.

An interesting tidbit from this daf is that it is the root of the concept that going to the Land of Israel involves a spiritual elevation (aliyah). The gemara asks why the mishna uses the term "alu" (went up) instead of merely saying that the classes went from Bavel to Israel. The gemara answers that it was meant to teach that Israel is higher (on a spiritual level) than any other land.

Another interesting point can be found on 69b in connection with the Levi'im who went to Israel with Ezra. Within the discussion of whether Ezra forced the classes to accompany him or merely took volunteers, the gemara asks about a pasuk found in the 8th chapter of the book of Ezra where Ezra states that he assembled the people and scrutinized them, but did not find any of the children of Levi. The gemara asks - if Ezra forced the classes to come up with him, then he would have known definitively who accompanied him? The gemara answers that he knew which classes of pesulim accompanied him, but not those whose class was untainted.

Tosafos (d'h "U'mibnei") asks the obvious question - since the mishna indicates that the Levi'im went up from Bavel with Ezra, why does the pasuk indicate that he could not find any Levi'im? Tosafos answers that the Levi'im who came up had physical defects (loss of the behonos) and were therefore ineligible to perform the service in the Beis Hamikdash.

The last interesting point I would like to discuss has to do with the nickname given to Nechemia - Hatirshasa. Rashi explains (citing to the Yerushalmi) that he earned this name because he was the one who would give the king to drink. However, the king would not drink without having someone else taste the wine (for poison) before he drank it. This presented a problem as Nechemia could not partake of the wine as it was stam yaynam. Rashi explains that Nechemia received a heter permitting him to drink the stam yaynam and it was because of this that he drew the nickname hatirshasa (heter l'shtos).

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Max Kellerman's Monday Musings Vol XXXV - Do you believe in luck or miracles?

The portions of today's Max Kellerman's show which I was able to listen to seemed dominated by the debate over whether an opportune "break" is the result of luck or hard work.

Of course, the above conversation related to the play with less than two minutes left in the NY Jets - Buffalo Bills game yesterday when Shaun Ellis recovered a fumble forced by Abram Elam and rumbled twenty some odd yards into the end zone. [Why is it that I heard no one questioning why Mangenious did not call time out when Buffalo had the ball with 2:48 left on the clock and they let the clock run all the way down to 2:05 before snapping the ball? He had all three time outs left at the time and the Jets were only down 3 pts. Maybe I just didn't listen to enough sports radio today, but I digress].

Max's initial take on the Jets game was that "Yes, Jets fans it took a miracle, but the Jets were only down one score and were in the game until the end." Max elaborated on this later in the broadcast as he explained that just hanging around and being in the game is most of the battle since "luck is the residue of design." Max also had a debate with Louie the call screener about the Jets and whether it is better to be lucky than good. Louie held his own in this debate (although he had some rather outlandish Giants comments which I detailed below). What he could have argued is that sometime you are due for a break. For example, in the Jets-SF game which they lost 24-14, the Jets forced five fumbles but only recovered one. Among the four which SF was able to recover was one which was batted into the end zone where the SF player fell on it for a touchdown. Take that score off the board and the Jets are only down 17-14 in the 4th quarter.

Later in the show Louie was grasping at straws when he argued that the Giants-Cowboys game was a "must win" game for the Giants as much as it was for the Cowboys. Sorry "everyman", but I can't agree with you on that one. The Cowboys were facing falling out of the wild card chase if they lost. The only repercussion for the Giants is whether they get the 1st or 2nd overall seed in the NFC and even that hangs on whether they beat Carolina next week.

Of course, no post Giants loss broadcast could be complete without at least one comment from Max as to why the loss was good for the Giants. Max did not disappoint as he opined that the Giants are "more likely" to win the Super Bowl again this year after having lost to the Eagles and Cowboys in back to back games. By this logic, Vegas will probably post 2-5 odds on the Giants winning the Super Bowl if they lose to Carolina and Minnesota.

There was also a great observation by a caller as to why Chad Pennington is doing better in Miami then he did as a Jet. The caller suggested that maybe Chad is a warm weather quarterback and cannot perform as well in cold climate games. To his credit, Max praised the caller and developed the thought, analogizing it to various athletes who get injured when they don't warm up properly or have to practice and play in cold weather.

Max's quotation of the expression "Luck is the residue of design" (which many attribute to Branch Rickey, but was originally penned by the British poet John Milton) has its roots in Torah thought. Ever since Adam and Eve ate from the apple, man has been cursed with a need to work in order to sustain himself. This work does not occur in a vacuum as it also taught that everything is in the hands of Hashem with the exception of fear of Hashem, or in the language of the Talmud Berachos 33b - Hakol biyidei shamayim, chutz m'yiras shamayim. The two concepts fall into balance as one needs to do work on his end (hishtadlus) and Hashem will do his part to help you succeed.

Now, I won't say that Hashem truly favors one team over another (Michael Kay does a great rant every so often on athletes or boosters who claim that G-d is in their corner). But the concept that one can get "lucky" if they work hard to put themselves in a position to succeed (or as Max put it, "luck is the residue of design") sounds an awful lot like do your hishtadlus, put your faith in Hashem and all will turn out fine.

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Sunday Night Suds - Shiner Blonde

This week's Sunday Night Suds review looks at another of the beers produced at the Spoetzel Brewery of Shiner, Texas - Shiner Blonde.

As I indicated in a November post on the Shiner Hefeweizen (http://kosherbeers.blogspot.com/2008/11/sunday-night-suds-shiner-hefeweizen.html) - the Spoetel Brewery has been producing beers under the Va'ad of Detroit for a few years. While these beers have achieved cult status in some locales, they are still unavailable in the New York area. The Shiner Blonde reviewed tonight was purchased in Chicago, Illinois and survived a trip home in my suitcase.

What is a blonde beer? Beer Advocate labels this brew as an American Pale Lager, which it defines as "lagers brewed without cereal adjuncts (mainly rice or corn). Though often still yellow and fizzy, these beers will display a broader depth of malt flavor and a more complex bitterness vs. their adjunct counterparts."

It should also be noted that not all blonde beers are lagers. A previous Sunday Night Suds reviewed the Redhook Blonde (http://kosherbeers.blogspot.com/2008/07/sunday-night-suds-redhook-blonde-ale.html), a blonde ale produced by the bi-coastal Redhook brewery with a much higher alcohol content (5.77%) than the Shiner Blonde Lager (4.4%).

Shiner Blonde is a very drinkable lighter beer. The flavor has no discernible hops and is basically all malt. It would make an excellent shalom zachor brew as it does not fill you up and would not be hard to finish after having eaten a large Friday Night supper. Of course you still have to find enough of it to be able to serve it at the shalom zachor, but if you live in its regular market...

Shiner Blonde (like many other beers produced at the Shiner Brewery) is certified kosher by the Va'ad of Detrot. For the experts' take on Shiner Blonde, click here http://beeradvocate.com/beer/profile/143/1075 .

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

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Thursday's Parsha Tidbits - Parshas Vayishlach

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

This week's parsha contains a discussion of the battle between Ya'acov and the Saroh Shel Eisav which occurred after Ya'acov went back to retrieve small vessels ("pachim kitanim") which he had left behind. Rashi on Bereishis 32:25 explains that this is a proof that tzadikim treat their possessions with care, so they should not come to theft.

R' Frand quoted the Alter M'Kelem who had a different take on why tzadikim are careful with their possessions. R' Frand explained that the tzadikim treat their possessions with care, because if they know that if they lose them, they will have to lose time to go shopping for new items. R' Frand then said that to tzadikim, shopping is a waste of their time and they would seek to avoid it. He said that he has to get his teeth cleaned, so he does it, but does not enjoy it. He said that to him, the same concept applies to shopping. He does not enjoy it, but sometimes it has to be done, so he goes out to shop.

R' Frand then said that to Ya'acov, if he lost the pachim kitanim he would have had to go to out and buy new ones. Rather than waste the time, he went back to retrieve the old ones. The Saroh Shel Eisav did not understand this. He looked at Ya'acov and thought that maybe Ya'acov had been influenced by his time spent in Lavan's house and that Ya'acov had become materialistic. Saroh Shel Eisav said to himself, now must be the time that is right to attack Ya'acov because he has been influenced by olam hazeh. However, the angel was not succesful ("Vaya'ar ki lo yachol lo"). Ya'acov responds to the angel with the expression he will later tell Eisav directly - Eem lavan garti, v'taryag mitzvos shamarti - I lived with Lavan, but I kept the mitzvos of the Torah.

The Torah relates at Bereishis 33:17 that following the battle with Saroh Shel Eisav and the subsequent meeting with Eisav, Ya'acov goes to Succoth. Ya'acov then lives there for 18 months. The only facts provided in the pasuk is that Ya'akov built a house and and huts (succoth) for the animals. The Targum Yonasan Ben Uziel explains that the house that Ya'acov built was a beis medrash which was constructed from mortar and stone. However, in constructing the huts for the animals, Ya'acov used sticks and straw. The Targum explains that Ya'acov set an example for his children that in building the beis medrash, he used solid materials which would last for generations, while the animal huts were functional but spartan. In so doing, Ya'acov told his children, no, I never got into the gashmius while in Lavan's home. These animal pens are transitory to serve their purpose, but are not the priority.

R' Frand finished by quoting the Tur. He said that each one of the Avos is connected with a holiday based on an act. Avraham is Pesach because of the Matzos baked for the angels who visited him. Yitzchak is Yom Kippur, because of the shofar which was made from the horn of the ram which was offered on the akeidah in his place. Ya'acov is connected with Sukkos because of his role in building succoth as a way of teaching the proper way to conduct one's life.

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Wednesday's Weird But True Legal Cases - Vol. XXXIV

Tonight's weird (but true) legal case asks - how do you sue the US Postal Service? The answer - not the way that the insurance carrier tried it in tonight's case analysis.

In Progressive Northeastern Ins. Co. a/s/o Bedford v. United States Postal Service, 2008 WL 4834508 (N.D.N.Y.), the court was faced with the following interesting fact pattern. In 2006, the Bedford family was involved in a car accident with another vehicle causing damages to the Bedford vehicle. As noted by the court, the accident occurred when Mrs Bedford failed to stop at a stop sign and collided with the other vehicle. So why sue the Postal Service? Because Mrs Bedford claimed that the mail truck parked on the corner prevented her from seeing the stop sign. And since Progressive paid to fix the Bedford car, they chose to subrogate against the Postal Service.

So how does one sue the Postal Service? Under the Federal Tort Claims Act (FTCA), someone with a potential lawsuit against the federal government and/or any of its agencies or employees is supposed to submit a claim form within two years of the event. If the government refuses to pay the claim, they then notify the claimant that the claim is denied and the person has six months to file a lawsuit in any Federal District Court. One additional caveat is that the claim is filed against the US Government, not the agency or employee.

In this matter, the insurer got it partially right, since the claim form was submitted to the Postal Service within the two year time frame. However, once the Postal Service rejected the claim, the insurer sat on its rights until sixteen months later when it filed a lawsuit in state court against the postal service and the driver of the mail truck.

Upon receipt of the suit, the U.S. Attorney removed the matter to Federal Court and then moved to dismiss based on the multiple defects. Needless to say, the insurer did not bother to oppose the motion and the case was dismissed.

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Tuesday's Thoughts on the Daf - Kiddushin 62

Kiddushin 62 continues the discussion of whether a person is bound by a condition ("tinai") which is not doubled ("caful"). The gemara had earlier explained the classic tinai caful involving the tribes of Gad and Reuven who indicated that they wished to inherit property on the East Bank of the Jordan rather than in what was previously known as the land of Canaan. At the time, Moshe had proposed a condition that if they were to assist with the war to conquer the land of Canaan they would get the property they desired, but if not they would not be permitted to settle there.

On Kiddushin 61, R' Chanina ben Gamliel taught that there is no requirement of a tinai caful in order for the tinai to be effective. On 62a, the gemara attempts to support his position by bringing a proof from Bamidbar 5:19 where in the discussion about a Sotah the chumash states that if she was administered a vow where she affirms that she was not involved with another man and that if this is correct she would be "clean" from the vow.

Rashi (d'h "hainu") notes that there was a later set of psukim which deal with both possible results and thus presenting a tinai caful, but that the first pasuk (5:19) does not contain the caful language and that the two sets of psukim should not be confused.

Tosafos (d'h "Bishlama") reiterates the Rashi, before noting that the tinai of Gad and Reuven had the hain (if you do this then x will occur) before the lav (if you don't do this then y will occur). However, in the pasuk at 5:19 there is a lav first, since the pasuk says that if you were not involved with the other man you will be rewarded. Tosafos answers that the hen/lav is not to be taken lieterally. Instead, when the vow contains what we want to occur first (even if that is an absence of an act which would be called a lav) that is the hen for the purposes of the tinai.

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Max Kellerman's Monday Musings Vol XXXIV - Giving Thanks, Shtick and Location, Location, Location

Today's Max Kellerman show (the limited amount that I was able to listen to) was a contrast in sports and styles, with a little bit of sociology thrown in for good measure.

The show began with Max saying "thank you" to the Philadelphia Eagles for beating the Giants (a sentiment probably shared by most of the teams in the NFC East). Max opined that the Giants needed the loss to the Eagles much in the same way that the Giants "needed" the loss to the Browns earlier in the year.

Max then began to analyze the Giants loss, stating that they were beaten on both sides of the line. He then retreated a bit, saying that had Plaxico Burress played they would have won the game. This was immediately rebutted by Robin Lundberg who pointed out that Plaxico Burress did not cover Eagles' receivers or make tackles.

Its funny, but sometimes the show gets into a shtick, but quickly abandons it. Last week, they began referring to Lundberg as the "Punslinger" and were using the tag line "you've just been punslung." Today's show did not have any reference to the Lundberg nickname. Has it gone the way of the Spanish phrase of the day, love mail/hate mail and parties for moving up in the ratings book? (I wanted to include the Hockey Rant, but it seems like that one still makes somewhat regular appearances). We'll have to see if the Punslinger returns.

Speaking of Max's sidekicks, there was quite a bit of abuse sent Louie Gold's way on today's show. Louie was understandably unhappy with the Jets performance on Sunday and he vented frequently, although often it was at inappropriate times. At one point Max sent Louie out for a "timeout" (is he getting ready to discipline Esther?) and appointed "Brent the Intern" as temporary call screener.

Job opportunity? Max let everyone know that he was short on interns and he invited listeners to apply if they could get credit from their school for the work. [Please contact the station at their website for information. I have no info on the requirements or how to submit an application].

Max also had (what I hope was) a joking line about Erin. In talking to a female Dallas Cowboy fan, Max said that "my wife is a mom, but I expect my supper hot on the table when I come home." Not that you'll take my advice, but Max, unless you have a lot of help at home (i.e. nanny and housekeeper) I would not be making demands like that of the mother of six week old. But that's just me.

Shockingly, there was some talk about the Nets and it did not involve the arena in Brooklyn. Max talked about how the Nets had the highest scoring back court in the NBA and one of the staff opined that Brook Lopez "is a poor man's Tim Duncan." Max then stated that the problem with the Nets is that they call themselves the New Jersey Nets and that if they called themselves New York (like the Jets and Giants who also play in the Meadowlands Complex) people would pay more attention to them.

Max's observation about the Nets and their location has its roots in Torah thought. No, it has nothing to do with Jewish real estate agents saying "location, location, location." In Pirkei Avos 6:9, there is a story told about R' Yossi Ben Kisma who was approached by a man who asked where he was from. R' Yossi responded that he was from large city of scholars and scribes. The man then said to R' Yossi "if you would be willing to dwell in my city I will give you hundreds of thousands of gold coins, precious stones and pearls." R' Yossi responded that "even if you would give me all the silver, gold, precious stones, and pearls in the world, I would not dwell anywhere other than a place of Torah."

Not to say that Max was making a direct reference to Pirkei Avos, but as always there are a few grains of Torah thought in his show. Sometimes the location where someone situates themselves is more important than what they do in their current location. To R' Yossi, staying in a Torah environment was more important than moving to a city where he would be paid handsomely.

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Sunday Night Suds - Coopers Sparkling Ale

Tonight's beer review looks at Coopers Sparkling Ale, another of the fine brews produced by one of the lesser known (in America) breweries in Australia.

About a year ago I first came across Coopers beer in Big Z in Huntington, New York. I had been dying to try Coopers as it has a great reputation and was certified kosher by Kosher Australia (formerly known as Melbourne Kosher). Unfortunately, I could never find Coopers in New York, no matter how hard I tried, until that day in February.

When I asked the guys at Big Z about Coopers and why they were able to get some, they told me that Coopers was making a push for the NY Market. Well, the push must not have been that hard, as I have only seen it at Big Z, Shoreline (also in Huntington) and Beer Garden (Hillside Avenue, Queens just over the Van Wyck).

The interesting thing about Coopers is that they don't use an expiration date or include the date of production on the bottle. Instead, the bottle contains a "best after" date. I checked their website for the reason and learned that:

Under Australia’s food laws, any product that lasts more than two years in the bottle does not require a best before date. The best after date was introduced to ensure that the minimum two weeks required for secondary fermentation has expired before the bottles are distributed for sale... Coopers Pale Ale, Mild Ale, Sparkling Ale, Dark Ale and Best Extra Stout are at their optimum upon leaving the Brewery but will still develop and mature, for in excess of twelve (12) months if stored in cool and dark conditions.

Unlike my experience with the Coopers Pale Ale (see review here http://kosherbeers.blogspot.com/2008/03/sunday-night-suds-coopers-original-pale.html), I found the Sparkling Ale to be quite refreshing with a little bit of bite. The beer itself has some sharpness to it and the carbonation level is perfect. There was no lacing on the side of the glass, but if you are planning on drinking (rather than admiring it) that should not bother you. I have enjoyed mine with quite a diverse assortment of food and I found that it goes well with everything. I'm saving my last bottle to try with pizza, as I suspect that it would go well with that as well.

As indicated above, Coopers Sparkling Ale is under the kosher supervision of Kosher Australia. I have attached a picture of the kosher symbols above the picture of the bottle itself above. This may be the only non-Israeli beer with the words Kosher Parve L'Mehadrin on the label. Click the first picture above to see the twin certification marks in greater detail.

To see the experts' take on Coopers Sparkling Ale, please follow this link http://beeradvocate.com/beer/profile/491/2128 .

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

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Thursday's Parsha Tidbits - Parshas Vayeitzei

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

R' Frand said a brief parsha vort this evening, before commenting about the tragedy in Mumbai (more on that below). R' Frand quoted a R' Orenstein from Detroit (a former talmid of the the Chofetz Chaim) who said that the Choftez Chaim used to comment about the story of the duda'im which is discussed in Bereishis 30:14-19, that it is instructive of how one can acquire Torah. He noted that Leah had bargained for the right to be with Yaacov in exchange for the duda'im. That night, Leah conceived Yissachar, who is symbolic of Torah. We see from this that Torah comes when one is willing to pay to support it. In this case, Leah was willing to give up the duda'im as payment for the right to have a child who would teach and become emblematic of Torah.

Following this short vort, R' Frand began to discuss the tragedy in Mumbai in which over 170 people were killed, and among them a Chabad Rabbi and his wife and two young men who were only in the Chabad House because they had come to daven and had stayed beyond the time of tefillah. [Regular readers of this blog will know that one of these boys (z'tl) was the nephew of my wife's uncle].

R' Frand told a story that R' Elya Svei when he was a young boy once went to shul and heard the community crying out in tehillim. He asked what was going on and was told that the community had heard of an earthquake across the globe and were afraid for their own lives and therefore were saying tehillim. R' Frand followed this with a quote from the Targum Yonasan Ben Uziel that when disasters come to the world it is all from Hashem and is his way of saying "you need more yiras shamayim."

Unfortunately, our generation does not perceive things in this manner. When natural disasters befall the world, we may observe them and say that the events are tragic, but they do not generally cause us to change our activities or increase our prayers.

Having said that, R' Frand continued, what are we to feel when Jews who are involved in mitzvos are butchered? He answered by making reference to Aharon's reaction when his sons were killed - "Vayidom Aharon." R' Frand then noted that the sefer Torah in the Chabad House in Mumbai had been shot through and the bullets had passed through the pasuk of "acharei mos shnei bnei Aharon."

R' Frand then began a discussion which linked to last week's parsha. He noted that Yaakov had been making lentil soup when Eisav came from the field. Why? Because Avraham had died and it was a seudas havrah. He quoted the Rashi that lentils or eggs are used at the seudah because they have no mouth - just as the mourners have questions and no way to voice them, so too these foods have no mouth as well.

R' Frand then stated - what does havrah mean - a recuperating meal. But what is recuperating about a meal with lentils/eggs which only serves to remind the mourners of their state? He answered in the name of Rabbi Luban (Highland Park, NJ) that the recuperative process is that the meal is prepared for the mourners by their neighbors and friends - to show them that they are not alone and that others share in their grief.

R' Frand then finished with a discussion as to how we can act to do our havrah - by doing kindness for others. He also said in the name of a Rav that I did not catch that we can improve our tefillah with a minyan, kavana when making birchas hanehenin and to learn with one's spouse.

R' Frand finished by saying over in the name of the Kelem Yeshiva that sometimes people have a "kalbina" awakening. What is this? A calf in the field hears thunder and stops eating and looks around. When it is sure that there is no danger, it returns to its eating. We need to be aware that these tragedies occur for a reason and make efforts to improve our treatment of others and our yiras shamayim for longer than it takes for the thunder to move on.

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Wednesday's Weird But True Legal Cases - Vol XXXIII

Tonight's Weird (but true) legal case involves someone a person who shot himself with a gun. No, this post does not involve Plaxico Burress. Instead, it looks at Kull v. City of New York, a case which asks the question, can a municipality be held responsible if someone shoots himself with a police officer's gun.

In Kull, a police officer employed by the City of New York was at home approximately two and one-half hours before his tour of duty was to begin. He had just finished shaving when the door bell rang. The officers went to get a shirt and, in so doing, put his service revolver on his TV set. A five year old child who was visiting the police officer's family picked up the gun, sat down in a chair and watched a television program. When he got up to leave, the gun went off and he was shot in the leg.

At the trial court level, the child's lawyer argued that the City was responsible for the actions of the police officer (although he was not on duty at the time) and that they should compensate the child for the injury sustained as a result of the officer's negligent failure to secure the gun. The trial court disagreed and dismissed the suit after the close of the Plaintiff's case. On appeal to the Appellate Division Second Department, the court affirmed by a vote of 4-1. In a tersely worded opinion, the majority explained that while the police officer was negligent, the City was not responsible for his actions since he was not on duty. However, the dissent took issue with this conclusion, stating:

In my opinion, it was error for the trial court to hold that any negligence on the part of the patrolman was not attributable to his employer, the sole defendant. Defendant's regulations require that patrolmen be available for duty at all times and that they carry a revolver at all times. Under the circumstances, it cannot be said that the patrolman's actions with regard to his revolver were not in furtherance of his employer's interests. The issue of whether the patrolman was negligent and whether his negligence was in the course of his employment should have been left to the jury.

The plaintiff subsequently appealed to New York's Court of Appeals (the highest court in the state) which reversed the decision of the Appellate Division and ordered a new trial based on the dissent in the court below.

It should be noted that twenty years later, the Court of Appeals revisited the issue in Joseph v. City of Buffalo. In Joseph, a police officer came home from work and placed his service pistol under the mattress of his three year old child. Sometime later, the officer heard a gunshot and discovered that his three year old had found the gun and shot himself. Although the child's mother sued the City (again based on its responsibility for the actions of its officer), the Court of Appeals ruled that the City was not responsible. In so doing, the Joseph court distinguished Kull, noting that the officer in Joseph was clearly off duty and was not preparing for work when he placed the gun under the child's mattress.

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Tuesday's Thoughts on the Daf - Kiddushin 55

Kiddushin 55 continues the analysis of the debate between R' Meir and R' Yehudah (initiated in the Mishna on 52b) as to whether items which are hekdesh can lose their status by virtue of intentional or unintentional acts.

Within this discussion, the gemara on 55a references a mishna in Shekalim which asks the hypothetical question - if someone finds an animal within the radius of the distance between Jerusalem and Migdal Eder, what becomes of the animal? R' Oshaya posits that if a person wants to obligate himself to give money against the value of the animal, if it is a male animal he must designate monies and use them to purchase an olah and a shelamim.

On 55b, the gemara asks whether there are possibly other karbanos which the animal had been designated for, and why should the male animal be limited to just olah or shelamim. As part of this discussion, the gemara asks - maybe it was meant to be an asham. The gemara then rejects this possibility as an asham is two years old and this was a one year old male animal which was found.

Later on 55b, the gemara asks about a female animal which was found, maybe this is a chatas? The gemara rejects this possibility, stating that the mishna was discussing a two year old female animal and a chatas must be a one year old animal. The gemara then says, but what does one do if a one year old female animal was found? Eventually the gemara answers this by saying that the one year old animal is brought into the keepa until its death.

Tosafos (d'h Ishtacach) asks - why is that with a female animal we explore the possibility of what to do with a one year old animal (which we are concerned may be a chatas), whereas the gemara previously (after rejecting the possibility that an asham could be a two year old male) does not discuss what to do if one finds a two year old male animal? Tosafos answers that if one finds a two year old male animal he can always keep it until it develops a blemish and then be podeh the animal. However, the one year old female animal which is suspected of being a chatas cannot be solved the same way. This is because a chatas can never be podeh, even if it develops a blemish. It is for this reason that the gemara must examine the situation of what to do with a found one year old female animal.

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Max Kellerman's Monday Musings Vol XXXIII - Football and Morals

While I normally try to get a healthy dose of Max on Mondays, I was unable to listen to more than a few segments today. With that in mind, the following is my take on today's Max Kellerman show.

Max led the show with a statement that "the best football teams in the NFL play in NY" despite the Jets loss this weekend. He explained that the Jets are still the best the team in the AFC and that Denver is one of those teams which is capable of beating any other team on "any given Sunday." He later commented that Jay Cutler is "the most talented quarterback in the league" which he then quickly qualified by saying "that Eli Manning is the best quarterback in the league."

I also heard some of Max Kellerman's shtick on basketball where he and Robin Lunderg invented the "D'Antoni Adjustment Machine" which takes the ordinary and makes it extraordinary. They ran some scenarios through the machine including: (1) Wilt Chamberlin scored 100 pts vs the Knicks in Hershey, PA in the70s, but run through the D.A.M., that would have been 312,000 pts; (2) Jonathan Papelbon through the D.A.M. would become Mariano Rivera; (3) Justin Tuck through the D.A.M. would become a superhero (I can't remember which one they mentioned) and (4) Stephon Marbury could not run through the D.A.M because it would not work on him.

There was also a statement made as to the Knicks being .500, despite the fact that "half of their starters" need to be integrated and have been with the team for a matter of weeks. During the limited time that I listened today I did not hear any talk about the Nets. I wonder if he would have similar feelings about the Nets' results, considering that three of the Nets five starters are new (Simmons, Yi and Brook Lopez) and that other than Sean Williams, no one on the team was a Net prior to last year's All Star break. I'm guessing that he probably did not tak about them, because they will be off everyone's radar until: (1) Devin Harris goes to the All Star game or (2) they beat someone in the First Round of the NBA playoffs.

Of course, Max explored the Plaxico Burress saga, taking an interesting approach to the arrest for alleged illegal possession of a gun (the lawyer in me makes me say alleged). He did a psychological analysis (borrowing from his dad perhaps) in noting that ever since Burress got his new contract he has been "acting out" by missing treatment, not letting the Giants know his whereabouts when he missed team meetings and the latest incident with the gun.

Max also took a sociological approach to Burress' arrest, analyzing whether the offense was legally or "morally" wrong. Max opined that the act of illegally possessing an unlicensed gun in a night club was not "morally" wrong because people are allowed to have guns as long they have a permit and that Burress' legal wrong was that he failed to obtain the permit. I heard one caller take issue with this, but then arrived at my destination and turned the car off.

While Max sometimes takes positions for effect, he has a very strong sense of moral right and wrong as it relates to his Jewish identity. Last January he went to Germany to cover a boxing match. He later spoke on air about how he perceived the local populace's views about him based on the fact that he was Jewish and how he felt uncomfortable around them. I can't remember his exact words, but I rehashed this with Sarah last evening after we learned that a nephew of her uncle had been killed in the Chabad House in Mumbai (click here http://www.jpost.com/servlet/Satellite?cid=1227702365025&pagename=JPost%2FJPArticle%2FShowFull for the story). Sarah remembered Max talking to us about the German people's view of Jews and how Max felt about it, but neither of us could remember how he phrased it.

I wonder what Max's take would have been of the incidents in Mumbai last week. Without getting into the details which are still painfully fresh in everyone's minds, the terrorists singled out Americans, Britons and Jews for their murderous assault. Why these groups? People will have a "knee jerk" reaction and say because of President Bush's policies in Iraq. However, we know that the terrorists targeted these groups long before President Bush took office. By way of example, the US embassies in Africa were blown up in the late 90's during the Clinton administration. Similarly the USS Cole was attacked in the Persian Gulf during the waning days of the Clinton presidency. Finally, we have learned that the planning and training for the 9/11 attacks all occurred during the late 90's.

All the above events took place during an administration which was the antithesis of the Bush White House. Indeed, Clinton had pushed and prodded Israel into permitting the Palestinians autonomy over the entire West Bank and Gaza Strip, before it all went south in late summer 2000 when the latest intifada erupted after the terms of a final peace deal could not be hammered out.

So why do these events occur whether we have a liberal president and an open world policy or a conservative administration and an imperial view? Because they hate Americans for our freedoms and Jews simply because they are Jews. These are just my views of course, but I wonder what Max would say about it.

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