Monday, May 20, 2013

New Psak: cigarette smokers can't be witnesses

NRG פסק הלכה של אב בין הדין בירושלים, הרב אליהו אברג'יל, קובע כי מעשנים פסולים לעדות, כך נקבע בפסק הלכה שפרסם בשנתון 'תחומין ל"ג'. בנימוק לקביעה החריפה, הסביר הרב אברג'יל כי "אדם שמודע לחומרת הנזק שגורמות הסיגריות, וממשיך בזה, עובר על 'השמר לך' ועל הציווי 'ונשמרתם מאוד לנפשותיכם' ".

הרב אברג'יל מבהיר כי לפי הפוסקים, כשאדם מזיק לעצמו הוא עובר על איסור מהתורה ולכן אסור מלכתחילה לקחת אותו לעדות קידושים וכדומה. בנוגע לאדם המעשן סמים קובע הרב אברג'יל כי "בוודאי פסול עדות כאשר הוא מכלה גופו ונפשו".

בנוסף, קובע הרב אברג'יל, כי היות ונזקי העישון מפורסמים וידועים לכל, שכן על קופסאות העישון מופיעה הודעה שהעישון מסוכן, לא ניתן להחשיב את המעשן כשוגג, שאינו מתכוון לעבור עבירה. 

23 comments :

  1. Good thing he only disqualifies them lechatchilla or there would be thousands of possul gets.

    ReplyDelete
    Replies
    1. Well considering that this is the Rabbi who brought us the passuled Ketubah after 20+yrs of marriage and three children... You would have to prove that the Ketubah was kosher, and then you could talk about the Get.

      Delete
  2. While not his most controversial ruling ever, it is probably not going to make him a lot of friends.

    ReplyDelete
  3. What about stoagies, pipes, and an occasional nargila? And moreover, what about that gat plant the taymanim are chewing?

    ReplyDelete
  4. I hate it when people say ונשמרתם is דאורייתא. The פסוק is talking about something else entirely. It's at most an אסמכתא בעלמא.

    ReplyDelete
    Replies
    1. Well, you have a long list of Gedolei Haposkim to contend with. You might allow your own addiction or perhaps your tendency to liberal views to guide you, but I will examine halacha first, long before considering my own preferences. Too many poskim have done exactly that, and have proclaimed the issur de'oraysa on smoking.

      Delete
    2. Smoking may be assur but I don't see how smoking can passel someone from eidus. Massekes Makos is clear that even the classes of people who it lists as passul l'eidus are accepted if the ba'alei din agree. Their passul is not a p'sul haguf. It is simply a chazakah that we don't trust these kinds of people. If we agree to trust them, they're glatt. No one, even from the gedolei hador, can arbitrarily passel any group of Jews l'eidus as long as those nogayah b'din are willing to accept their testimony.

      P.S. the inadmissablitiy of relatives as eidim is a rayah. We don't accept the testimony of relatives because they may not be trustworthy in this case but their individual testimony in other cases is perfectly kosher.

      Delete
    3. Smoking may be assur but I don't see how smoking can passel someone from eidus. Massekes Makos is clear that even the classes of people who it lists as passul l'eidus are accepted if the ba'alei din agree. Their passul is not a p'sul haguf. It is simply a chazakah that we don't trust these kinds of people. If we agree to trust them, they're glatt. No one, even from the gedolei hador, can arbitrarily passel any group of Jews l'eidus as long as those nogayah b'din are willing to accept their testimony.

      P.S. the inadmissablitiy of relatives as eidim is a rayah. We don't accept the testimony of relatives because they may not be trustworthy in this case but their individual testimony in other cases is perfectly kosher.

      Delete
    4. What is your ArgumentMay 20, 2013 at 11:28 PM

      I am vehemently against smoking, fully educated about the medical dangers, and am convinced that it is as smart to ask a posek about smoking as about eating chazzer. manhy years ago, I took the position that smokers should be posul for eidus, and I discussed it with several rabbonim who serve as morei hora'ah. They guided me to the Shulchan Aruch who, it seems, says that other aveiros that have not been listed in the gemora as psulei eidus cannot be considered as such. I apologize for not recalling the exact reference. However, sometime later, I encountered the psak from Rav Shlomo Zalman Auerbach ZT"L, and I was pleasantly surprised.

      I'm not a posek, but also not an ignoramus. If you want to butt heads with RSZ"A, guess who will win. If you wish to challenge the psak about smoking being assur min haTorah, you will also lose. So, just precisely what is your argument?

      Delete
    5. Vchai Bahem is De'oraita

      Delete
  5. tzaddok, is he the av bais din of yerusholayim of the rabbanut?

    ReplyDelete
    Replies
    1. He is the head of the Rabbinut's Beit Din. Known as בית דין הרבני.
      He was made famous by this psak a few years ago:
      http://daattorah.blogspot.co.il/2012/05/20-yr-marriage-annuled-for-invalid.html
      http://www.jewishpress.com/news/us-news/rabbinic-court-annuls-20-year-marriage-witnesses-not-sabbath-observers/2012/05/18/

      Delete
    2. this is clearly a brilliant Rabbi, who knows halacha and is bold enough to make decisions. He invalidated the kiddushin to release an aguna.

      Delete
  6. I thought they were only pasul if they used a smartphone to order the cigarettes over the internet.

    ReplyDelete
  7. the olam is overlooking another angel one who eats in the shuk is pasul lieidus because he is "aino chush libsiono"
    since in todays world it is genarly considered a low class cheap pleasure that no self respecting person would engage in one who does so in public would be pasul leaidus because of this din

    ReplyDelete
  8. Rav Moshe Feinstein refused to write that smoking is Assur. Although people tried to pressure him to do so, he refused.
    He would laugh at this rabbi and his psak.

    ReplyDelete
    Replies
    1. השופט אשר בימיךMay 21, 2013 at 3:43 PM

      Pardon, but your ignorance is showing. If you review the teshuvos from Reb Moshe, he clearly states that it is assur to begin smoking. The context of his teshuvah is whether it is lifnei iveir to give someone a light. He also notes that there is a minimum of scientific data on the dangers of smoking. This was in the early 1960's. If you check with Reb Moshe's sons shlit"a, they will tell you that Reb Moshe would clearly pasken that it is completely assur.

      That said, we are mechuyav to follow the poskim of our current generation, especially because the field has changed with the accumulation of more information. The list of gedolei haposkim that proclaim it is an issur d'oraysa is quite long. Rav Ovadia Yosef shlit"a paskened that one may smack the person across the face to knock the cigarette away from him.

      Delete
    2. Since I am so " ignorant" and since I own a set of Igros Moshe please tell me which cheylek and which teshuva he writes that it is " ossur" to smoke.
      Also, Reb Moshe in his humility realized that others may disagree with him. I am sure he would not have laughed at those Poskim who hold its assur.
      What I wrote is that he would laugh at someone who "passuls a smoker from being an Ayd.

      Delete
  9. Dayan Abirgil is NOT the Av BD in the Jm Rabbanut with which my wife and I are dealing. He is definitely a character who likes to show that he knows stuff, as he throws around psukim from tanach and piskei halacha that are really quite irrelevant.

    Methinks he's got ambitions

    ReplyDelete
  10. Looking at Rav Moshe's Teshuvah in Yorah Deah Part2 #49 he wrote: [my translation]
    " Regarding smoking cigarettes,since there is a suspicion[of danger]it is proper to be careful[refrain from smoking]. But to say that it is Assur from Sakanah since many are already doing this and we have have the posuk "G-d watches over fools" and especially since many Gedolim of past generations and this generation do smoke. Therefore even those who are machmer to suspect sakanah, there is no issur in my opinion to give a light or matches to one who smokes"
    He never says himself its Assur to smoke. And again I am sure he would have laughed at this rabbi who said smokers are posul laydus.

    ReplyDelete
    Replies
    1. השופט אשר בימיךMay 22, 2013 at 3:53 AM

      In that teshuvah, he states that someone who does not smoke should not start. He also references that there is some evidence that there are negative effects from smoking. However, and this was verified by both of Rav Moshe's sons, the knowledge of smoking's dangers was primitive at that time. With the current volume of information, it is clearly assur, and this is how Rav Moshe would have paskened. At that time, there was only "suspicion". Now, there's fact. You are correct that he does not make any emphasis to the issur, though he does say not to take up smoking.

      Delete
    2. This was one of RMF's "fuzzy" teshuvot - i.e. he is making a last ditch stand to protect the honour of Gedolim who smoked.
      This is because the alternative would be a) to call Gedolim sinners, even if unknowing sinners.
      b) Those who were not able to give up, would continue to sin knowingly.

      This is the "teleological halacha", which Haredim deny its existence, but it is clearly the case.

      Delete
  11. There are two issues here:
    1 Is smoking permitted or forbidden.
    2 If Forbidden is a smoker "posul L'adus"
    Regarding #1, I have not found any written Teshuva from Rav Moshe where he says its Assur to smoke. The fellow here who posts as "Hashofet" writes the if Rav Moshe were alive today he would pasken that it is forbidden. Maybe. Maybe not. We cannot know all the factors Rav Moshe considered. I learned in MTJ from 1972-74 and even then there was pressure on him to declare that smoking cigarettes is forbidden. He refused to do so.
    Regarding #2, even those poskim who say it is forbidden: It is a very wide gap to say that a smoker is Posul L'Adus. The custom here is that we do not Posul anyone from being an Ayd at a wedding unless they are a Shabbos desecrator, eat Treyfus, or even worse ie intermarried etc. Any Jew who is a Shomer Torah and Mitzvos will be accepted by most Rabbonim as an Ayd. "Hashofet" wrote that Rav Ovadya forbids smoking. But he NEVER wrote that a smoker is Posul L'Adus. He is too smart to write such foolishness. Again I revert to my original statement that if Rav Moshe were here, he would laugh at this Psak.

    ReplyDelete

ANONYMOUS COMMENTS WILL NOT BE POSTED!
please use either your real name or a pseudonym.