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The Mishna stated: “We testify that this particular person owes his fellow two hundred zuz,” and they are found to be zomemin, they receive lashes and must pay, for the Scriptural verse that makes him liable for the lashes is not the same as that which makes him liable for compensation; these are the words of Rabbi Meir. But the Chachamim say: Whoever is liable to pay does not receive lashes.
Based upon this, the Panim Yafos answers the following question: The Gemora in Kiddushin states: Why was an ear chosen (to be pierced - when a Jewish servant wishes to stay by his master even after the six years) more than other limbs of a person’s body? Hashem says that the ear that heard on Mount Sinai, “For to Me Bnei Yisroel are servants,” and not servants to servants, and he went anyway and chose a master for himself, his ear should be pierced. The question begs to be asked: If the piercing is because of his stealing, why don’t we pierce his ear immediately? Why do we wait until he wants to stay longer?
Our Gemora states that whoever is liable to pay does not receive lashes. If one is liable a punishment of lashes and money for one action, he does not receive lashes and pay, but rather, he pays and he does not incur the lashes.
Accordingly, we can say that the thief was deserving of getting his ear pierced immediately – except, since he is required to pay for that which he stole, and selling him as a servant is instead of his payment, he is therefore exempt from the piercing, for he cannot pay and receive “lashes.” However, after he served his six years, and he says, “I love my master, my wife and my children; I do not want to go free,” he is revealing to us that his serving as a servant was not a punishment for him. Retroactively, he reverts to the halachah that he should be punished for selling himself as a servant through piercing.
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By: Meoros HaDaf HaYomi
Buying a lottery ticket for a charitable cause from ma’aser money
Many charitable institutions raise funds by promising prizes to be awarded in a lottery among the contributors. HaGaon Rav Moshe Feinstein zt”l (Responsa Igros Moshe, O.C., IV, 76) was asked if a person could purchase such a ticket from his ma’aser money or if the ticket should be considered as having a monetary value to its holder and thus forbidden to be purchased from ma’aser.
Two types of tickets: Rav Feinstein remarks that we should divide this question into two parts – i.e., two types of lottery tickets. Some institutions issue a fixed amount of tickets, promising that at a certain date or when all of them are sold, the raffle will be held. In such a lottery even the first purchaser knows his chances of winning.
Nonetheless, there is another sort of ticket: Some institutions do not limit the amount of tickets and fix no final date for the raffle. It is obvious, then, that such tickets have no monetary value. A person who purchases such a ticket has no investment, as he has been promised nothing. It is not an investment but a form of charity and may be purchased from ma’aser.
What is the nature, though, of the first type of ticket? First of all, we must examine if we can define the value of something whose worth is unknown. In other words, is a lottery ticket regarded as an item of monetary value although the vast majority of purchasers win nothing?
Estimating the worth of an item whose value is unknown: Rav Feinstein proves from our sugya that we can regard such an article as having value. Our sugya explains that we can estimate the worth of a kesuvah of a woman who has not been divorced by examining the amount merchants would be willing to invest to purchase the rights to the kesuvah once it can be realized. The merchants examine the state of the couple’s health, their relationship and the like. They then estimate the wife’s chances to survive her husband or get divorced and earn her kesuvah. We thus see that we can regard an item whose worth is unknown as an article of monetary value. One should therefore not purchase a ticket of the first sort from ma’aser as the purchaser immediately gets the worth of his investment.
The winner of a lottery: Rav Feinstein adds that if a purchaser of the second type of ticket wins a prize, he should better return the cost of the ticket to his ma’aser money (see Derech Emunah on Matenos ‘Aniyim, Ch. 7, in Beiur Halachah, s.v. V’echad).
Reasons for Shemittas Kesafim
By: Rabbi Moshe Donnebaum
As strange as the mitzvah of relinquishing one’s loans may seem, there are important lessons in regard to this commandment. The Sefer HaChinuch explains that the first useful benefit to be gained is the characteristic of generosity. There is none so generous as he who gives without hope of receiving anything in return. So too, relinquishing a loan with no benefit or gain in mind imbues a person with this noble character trait.
The second lesson mentioned in the Chinuch relates to the mitzvah of bitachon - trust in Hashem. Anyone who, upon command, relinquishes all outstanding debts, is continuously strengthening his level of trust in Hashem. The creditor displays trust that any losses incurred will be fully reimbursed to his allocated and pre-determined wealth. The knowledge of G-d as the source of all livelihood and provider of all one’s needs is confirmed, and substantiated when releasing a debtor from his debts.
The Chinuch continues that the mitzvah of Shemittas kesafim is also a ‘barrier’ to keep away from robbery and any desire to own the possessions of one’s neighbor, via a kal vachomer. If the Torah decrees that one should leave a loan in his neighbor’s hand concerning money that is rightfully owed to him, then certainly he may not obtain his neighbor’s belongings, in any way, without his neighbor’s consent.
Shema Yisrael Torah Network
by: Rabbi Avrohom Adler
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Makkos and Forty
The Chidah writes that he heard from an elderly mekubal that it is advantageous to study Tractate Makkos, for it is the same numerical value as “hirhurim” – “thoughts,” and it will be an assistance to those who wish to rid themselves from any impure thoughts.
It is stated in the Medrash Tanchuma that one who transgresses a negative prohibition incurs forty lashes because a person is created in forty days, and he violated the Torah which was given to Moshe in forty days.
Warning not Necessary
By: Meoros HaDaf HaYomi
We are now learning the sugya of eidim zomemim, false witnesses who testify that they saw an act performed by a certain person and are later contradicted by others who assert that the witnesses were with them elsewhere at the time of the supposed act and could not have seen it. The false witnesses are punished with the punishment they intended to mete on the person about whom they testified. At the beginning of Makkos we should cite the explanation of HaGaon Rav Shimon Shkop zt”l about this halachah.
False witnesses are punished without being warned: A Beis Din does not punish a person unless he was warned before his act that he is about to transgress a prohibition of the Torah and will be punished accordingly. Still, false witnesses are punished without such warning (Kesuvos 33a), as the Gemora (ibid) explains, since they wanted to punish someone whom they never warned. Rambam (Hilchos ‘Edus, 20:4) adds that even unwitting false witnesses (shogegim), who did not know about the prohibition of false testimony, are punished.
Two reasons for warning: There are two reasons why we can’t punish someone without warning him: (a) He should not be considered shogeg (Makkos, 6b), unaware that he is transgressing a Torah prohibition, and (b) He should know that by his act he decrees a punishment on himself (Sanhedrin 41a and Rambam, Hilchos Sanhedrin, 12:2; see ibid, that the transgressor must explicitly acknowledge his penalty). Apparently, the Gemora’s explanation, that we don’t have to warn false witnesses because they wanted to punish an unwarned person, means that we can punish the witnesses even though they didn’t know that they could be punished with death. Still, what is Rambam’s basis for saying that we don’t have to verify that the witnesses acted willfully (see Raavad, ibid)?
False witnesses are punished for their cruelty: Rav Shkop explains that Rambam assumes that false witnesses are not punished for transgressing but “because of their wickedness, acting against characteristic human decency. Even though they didn’t know of the prohibition by the Torah, since they knew that they were falsely incriminating a person…that is the main point of their evil…” (Chiddushei Rabbi Shim’on Yehudah HaKohen, Kesuvos, #39, and see Ketsos HaChoshen, 25, S.K. 8, and Sefer HaMafteiach as for other explanations for Rambam’s ruling).
By: Reb Avi Lebowitz
In a situation where two groups of witnesses contradict one another about an event; it is classified as contradictory witnesses, where we have no reason to believe one any more than the other. Under these circumstances the Gemora in Bava Basra has a discussion about what to do - it is an uncertainty, so follow the chazakah. One thing, however, is clear, that we do not believe the latter group any more than the first. However, where the second group doesn’t testify about the event, rather about the validity of the first two as being valid witnesses, such as testifying that they are thieves, the second group is completely believed to overthrow the testimony of the first group. This is not considered a novelty, since everything that the first group is saying is true, just that by believing the second group that the first are thieves, we automatically do not accept their testimony.
Rava (in the first version) holds that a zomeim is a novelty and therefore only becomes disqualified from the time of the hazamah, and not retroactively from the time of the testimony. Abaye would presumably agree with Rava that zomemin is a novelty, just that it is not logical for them to be disqualified from the time of the hazamah; therefore we disqualify them retroactively from the time of their testimony.
It seems that the concept of “novelty” by zomemin is that rather than considering it to be a case of contradictory witnesses, where the second group are merely disagreeing about the event, we consider it as if the second group are actually testifying about the character of the first group, invalidating them as witnesses. (See Tosfos who explains that the novelty of zomemin more than contradictory testimony is either that the second group is entirely believed, or that the first group is definitely disqualified, not just out of uncertainty. Assuming like Tosfos’ second approach that the novelty of zomemin is to view the testimony to be on the character of the witnesses, not on the event, in which case it is not a novelty to directly disqualify the first or to validate the second, rather it is a novelty in classification).
Why are zomemin somewhere in between? In essence, the second group is not making a character judgment; they are only contradicting the facts – “these two witnesses could not have possibly witnessed what they claim to have witnessed since they were with us elsewhere.” Had it not been for the novelty of the Torah that we believe the second group, we would view it as if they just contradicting the first group about the events, where we would have a legitimate doubt as to who to believe. We would interpret their intent as simply being that the event was not witnesses by these two witnesses because they were with us elsewhere. But the Torah teaches us that we are not to regard the hazamah as just undermining the plausibility of the event, rather they are giving a character testimony similar to claiming that the first group were thieves. Why?
It would seem that the reason is because when testifying about an event, it is sometimes possible to misinterpret the event, or not have a clear picture as to what actually happened, so we give each group the benefit of the doubt. But, by zomemin, the second group is claiming that it was clearly premeditated lying that is taking place, not an innocent mistake. People who would fabricate a story when they were in an entirely different location have a fatal character flaw just as thieves do, and therefore they are not admissible as witnesses in any court.
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Eretz Yisroel and the Beis HaMikdash is Higher than all other Places
Does High and Low Apply to Spherical Objects?
In our sugya the Gemora cites a verse in Yirmyahu (23:7) “…Who brought Bnei Yisrael up from the land of Egypt” and a verse in Devarim (17:8) “…then you shall arise and go up unto the place which the Lord thy G-d shall choose” to demonstrate that Eretz Yisrael is higher than any other land, and that the Beis HaMikdash is the highest point in Eretz Yisrael. The wording of the Gemora seems to indicate that Eretz Yisrael is physically higher. In fact, the Yam Shel Shlomo (Kiddushin Chap. 4, 1) goes so far as to say that if someone standing in Eretz Yisrael says, “I vow to go up to Chutz La’aretz,” the vow is considered to be made in vain and is invalid. Leaving Yerushalayim or Eretz Yisrael is always referred to as “going down.”
Many commentators maintain that our Gemora should not be interpreted literally. The Chasam Sofer (Responsa, Part II, Y.D. §234) stresses this point, writing, “…in fact, those who are somewhat familiar with the world map can see otherwise…actually the world is round, and high and low do not apply to spherical objects; from any given point one sees the skies high overhead and low on the horizon, forming a dome. Someone who approaches from a point on the horizon appears as if he emerged from a deep pit, and high and low do not apply.”
Furthermore the Maharal of Prague (in his book on Talmudic Aggados and in Tiferes Yosef, Chagiga 3b, s.v. Eizehu) writes that the Gemora is referring to the spiritual loftiness of Eretz Yisrael, and not to its physical height.
It is interesting to note that the Chasam Sofer (ibid) writes that Eretz Yisrael is said to be “higher than all other lands” because Creation began from the even shesiya [foundation stone] located on Har HaBayis (see Rashi, Sanhedrin 26b, s.v. veshesiya). Thus all eyes are raised to Eretz Yisrael and Har HaBayis because mankind lifts its gaze to the spot where the ground beneath its feet was first created.
by: Rabbi Yaakov Montrose
(printed in Halachic World)
Reb Muttel was not sure what to do. On the one hand, his daughter simply had no luck with shidduchim, and she was already thirty-nine. On the other hand, though the potential shidduch his daughter was now being offered was a person who was well known to be a tremendous Tzadik, and a kind and wealthy person, he thought that marrying off his daughter to someone thirty five years older than her might be transgressing the Gemora that says that one should not marry off his daughter to an older person. As any Torah abiding person would do when he was unclear about a certain Halachah, he went to ask his Rav to advise him as to whether or not the Shidduch was permitted.
The Gemora says that three types of people transgress the verse of “Lemaan Sefos Haravah Es HaTzemei’ah” - “In order to add the watered upon the thirsty.” One of them is someone who marries off his daughter to an old man. The Shulchan Aruch rules that this is also a prohibition against a young man marrying an old woman. The reason for the prohibition is that the younger partner will not be satisfied with the relationship, and will probably end up acting in a promiscuous fashion.
The Sefer Chasidim says that this a prohibition against being “married off” to an old man. If a woman wants to marry an old man - for example, if she wants to do so because she wants to be the wife of a Tzadik - she would be permitted to do so. This Sefer Chasidim is quoted by the Beis Shmuel and Chelkas Mechokek.
There seem to be at least two clear proofs to the Sefer Chasidim. We know that Rus married Boaz, who was extremely old at that time. Additionally, we find in Avos D’Rebbi Nasan (ch.16) that Rabbi Eliezer was already an old man when his young niece wanted to marry him. After he tried to discourage her and she still insisted, he agreed to marry her.
The Aruch HaShulchan qualifies the Sefer Chasidim. He explains that even if the girl readily agrees to the marriage, if Beis Din sees that the woman’s motives are to share (or take over) her husband’s wealth, it is not appropriate to perform such a wedding. Being that she is not really interested in the marriage, she will end up being unfaithful to her husband.
Conclusion: It is permitted for a woman to marry an old man if we see that the reason for her agreement to the marriage is worthy. One is not allowed to pressure his daughter into such a marriage against her will.
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By: Reb Avi Lebowitz
The Mishna lists gamblers among those who are unfit to judge, and as Rashi points out, unfit to testify, since they are regarded as re’shaim. There is a discussion in the Gemora as to why a gambler is unfit to testify or judge. Rami Bar Chamah holds that it is an issue of “asmachta,” which means that the money he wins is regarded as stolen. Rav Sheishes disagrees and attributes the disqualification to not being involved in furthering the general welfare of the public. The Gemora points out that the difference between the two opinions would be a situation where he has another job aside from gambling. The issue of “asmachta” would apply regardless of whether he has another means of support, whereas the issue of furthering the general welfare of the public would only apply if he has no other means of support.
Tosfos points out that both opinions in the Gemora agree that the disqualification is only Rabbinic, because even the opinion who considers it theft due to “asmachta,” since he doesn’t realize the severity of the prohibition; he is not invalidated as a witness on a Biblical level. Regardless, we rule according to Rav Sheishes that the disqualification is attributed to him not being involved in furthering the general welfare of the public which would surely be Rabbinic.
There is a dispute between the Rambam and Rashi as to the nature of the disqualification of not being involved in furthering the general welfare of the public. The Rambam associates this with theft. Since the looser isn’t willingly forfeiting his money to the winner, it is considered “avak gezel.” The S”ma (C.M. 34:40) explains the position of the Rambam - since it is not technically theft, the Rabbis only considered it to be a problem if his main livelihood was coming from his gambling earnings. When the Gemora stipulates that he is only disqualified if he doesn’t have another means of earning a living, the Gemora really means to say that he doesn’t have another source of income. If he has another source of income, or is wealthy so that he doesn’t need the gambling earnings for support, he would be eligible to serve as a witness. However, if he had another income, but required the earnings from gambling to support himself, he would be disqualified. The Gr”a (C.M. 203:44) disagrees with the approach of the S”ma and explains that the Rambam actually rules like Rami bar Chamah that an “asmachta” is not binding, and therefore, he considers it to be theft. But, the Gr”a holds that even though it is stealing, the Sages only invalidated him when he has no other livelihood.
Rashi considers the issue of not being involved in furthering the general welfare of the public to have nothing to do with theft. Rashi considers the issue to be an indication of a very low level of fear of Heaven. The S”ma explains that this only applies to someone who doesn’t work and doesn’t realize the difficulties involved in earning money and would be prone to testify falsely (because he associates money as “easy-come, easy-go,” and doesn’t take it seriously). But someone who works, even if he can’t support himself without the added income from gambling, wouldn’t be disqualified for testimony since he realizes the challenges of earning a living.
The Shulchan Aruch, who follows the Rambam, and considers the problem of gambling to be associated with theft, follows his own opinion (c.m. 370:3) where he writes that one who gambles with gentiles would not be in violation of theft (since only actual and direct theft is forbidden from a gentile, but not when he loses in gambling and agrees to give the money). Rashi would certainly not make this distinction and would hold that even one who gambles with gentiles would be disqualified to testify. Even according to the Rambam, the Shulchan Aruch frowns upon gambling and writes: However, it is forbidden to occupy oneself with matters of vain, for a person should only occupy his time with wisdom and matters that benefit the general welfare of the public.
Rules of the Game and the
Rules of Life
By: Meoros HaDaf HaYomi
Rabbi Nachum of Stepinesht, the son of Rabbi Yisrael of Ruzhin, once entered his beis midrash during Chanukah and saw some chasidim playing checkers. Seeing their Rebbe, they were taken aback, but Rabbi Nachum approached and asked them, “Do you know the rules of the game? Now listen carefully:
1) You give one piece to get back two.
2) You mustn’t avoid your move.
3) You mustn’t make two moves with one turn.
4) Go forward, but never backward.
5) When you get to the top, you can go anywhere (Rav S.Y. Zevin, Sipurei Chasidim al HaMo’adim, p. 267).
HALACHAH ON THE DAF
The Gemora rules that one may be matmin (insulate) a cold food or drink on Shabbos. The Shulchan Aruch (Orach Chaim 257:6) clarifies that one may only do so when the insulation does not add heat (eino mosif hevel), and his whole purpose of doing so is to ensure that the item will not become too cold. If however it does add heat (mosif hevel), then it is forbidden to insulate it even prior to Shabbos.
In generations past, in order to keep the cooked food warm once it was taken off the fire, it was insulated. Although there isn’t any issur melachah with hatmanah per se, the Chachamim nevertheless forbade it so as not to violate the issur of bishul in the event that before the insulation he would find that the item cooled off and then he would return it to the fire. Therefore one may not do hatmanah on Shabbos even when the insulation is not mosif hevel (ibid 257:1).
The Chachamim additionally forbade insulating an item in a place where it’s mosif hevel even before Shabbos. The reason being since in the times of the Gemora the ideal place for mosif hevel was in the ash next to the fire, and he might come to stir the ash on Shabbos to heat up the insulated food, thereby violating a form of mavir (ibid).
Reb Moshe Feinstein (Igros Moshe Orach Chaim 4:74 - Hatmanah) explains that it is forbidden to insulate an item in a manner of mosif hevel even early Friday morning. [One cannot infer that Reb Moshe held that there isn’t any problem of hatmanah if it was insulated before Friday, since the question he was addressing was regarding Friday morning. On the contrary, it is pretty clear from his wording that it would be forbidden to do so no matter when it was insulated.]
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The Tur writes that any judge who knows that a different judge is a thief or otherwise evil should not sit in judgment with him. And this is how the pure-minded people of Yerushalim conducted themselves. They would not sit in judgment unless they knew who was sitting in judgment with them.
The Perishah asks that the Tur’s language is not precise, for it would seem from his words that the pure-minded people of Yerushalayim would not sit in judgment except with people whom they knew to be thieves or evil!? And behold, in truth, they would not sit with people about whom they were even uncertain about their character! The Rambam’s language, however, is more precise.
The Perishah explains the Tur as follows: There is a strict prohibition against sitting in judgment with someone who is known to be a thief or otherwise evil. This is not merely pious conduct, but rather, it is something which is forbidden to do. There is a level higher than that, and that is not to sit in judgment with people that you are unsure about. This is how the pure-minded people of Yerushalayim would conduct themselves. Even if they did not know for certain that the other person was evil, they still, as an act of righteousness, would not sit with them.
The Bach reaches a slightly different conclusion. He states that an ordinary person should not sit with others in judgment only if he knows that they are evil; however, if he does not know, there is no concern whatsoever. However, prominent people, such as the pure-minded people of Yerushalayim, they should not sit in judgment with others unless they are certain as to their character.
The Aruch Hashulchan writes l’halachah that since we can presume that all Jewish people have a fine character, there is no reason to assume that someone is a thief, and therefore, there is no prohibition against sitting in judgment with someone that you do not know. It is regarded as “hiddur” to be wary of such people.
The Shvus Yaakov holds that if one of the judges does not know the other two, he should not sit in judgment with them; however, if two of the judges know each other, but they do not know the character of the third, there is no prohibition against sitting in judgment with him, for the majority of the Beis Din is proper. This is the case that the pure-minded people of Yerushalayim were strict about; they were extra careful even if it was only one of the judges that they were uncertain about.
Each Litigant Chooses a Judge
By: Meoros HaDaf HaYomi
Our Mishna addresses one of the basic rules pertaining to a beis din: One litigant chooses a dayan, the other chooses another and both dayanim choose a third. The rule applies to financial or property cases and describes the method of composing the required beis din of three dayanim. Nonetheless, the rule is characterized by a serious lack of clarity. The Panim Meiros already protested several hundred years ago: “I have seen a scandal in our generation regarding this rule: Each litigant first explains his claims to the dayan he chooses and, moreover, promises him a certain amount if he acquits him…and justice becomes distorted and the light of the Torah is extinguished and the name of Heaven is profaned” (Responsa Panim Meiros, II, 159).
Those learning the beginning of Sanhedrin may wonder: We are told, after all, that three dayanim may judge a defendant against his will (Tosefos 5a, s.v. Dan), so how can the above rule be applied? Anyone may summon another to a beis din and the defendant, willingly or not, must accept the judgment of that beis din. This question caused the misunderstanding that a beis din of which two dayanim are chosen by the litigants lacks the authority of an ordinary beis din. Furthermore, each litigant tries to choose a dayan he has known well and before the hearing he sets forth his claims to convince him to agree with him even though the dayanim are forbidden to hear only one side.
The Rishonim (Chidushei HaRan, Hagahos Ashri) explain that a beis din may judge a defendant against his will only if he refuses to appear for a din Torah. If, however, he agrees to appear, each litigant chooses a dayan and the two dayanim then choose a third. Still, asserts the Rosh (#2), we should not think that the dayanim chosen by the litigants are meant to act in their favor. Rather, the possibility to choose dayanim is intended to perfect a true verdict as each dayan presents every possible claim to justify his litigant that would otherwise escape the attention of the beis din. Hearing all the claims, the beis din can then issue a true verdict. The Rosh adds that if a litigant insists on appointing an unsuitable dayan, the beis din ignores his request and forces him to be judged by themselves or by a beis din they appoint. In other words, the rule of litigants choosing dayanim is not meant to effect any kind of arbitration. A beis din chosen by litigants has full authority and its dayanim must be as qualified as any others.
Despite all the above, the Remo asserts (C.M. 3:1) that wherever there is a regular, established beis din, a defendant must not refuse to be judged by them or demand to choose his own dayan. The Acharonim explain that the Remo refers to towns whose residents have accepted the authority of certain dayanim as a permanent beis din with no conditions. This acceptance of authority excludes any permission to refuse to be judged by them (Tosfos Yom Tov on our Mishna; Aroch HaShulchan, ibid, 2). In our era HaGaon Rav Moshe Feinstein zt”l referred to the city of New York (Responsa, C.M. 2:3) and ruled that the residents had not appointed permanent dayanim, “especially being that there are many rabbinical associations which have never convened to jointly appoint even one dayan; if a litigant wants to choose his own dayan, we must therefore obey his wish.”
HALACHAH ON THE DAF
The Gemora mentions that the pure-minded people of Yerushalayim did not enter to eat a meal unless they knew who would be eating with them. Rashi explains that it was considered degrading for a Torah scholar to eat with an unlearned person.
The Be’er Heitiv (Orach Chaim 170 s.k.) cites Mateh Moshe who holds that this halachah applies even by a seudas mitzvah. The Biur Halachah cannot find a source for his ruling, and notes that we don’t refrain from doing so. Furthermore, he maintains that even the Mateh Moshe would agree in an instance where there is a benefit for the participants when a talmid chacham enhances a seudah with his presence, then, he may do so. Also it is possible that the Mateh Moshe would concur that a talmid chacham may participate in a regular seudas mitzvah, if a) there are other talmidei chachamim there as well, or b) if he is sitting by himself (he deduces this from the above mentioned Rashi who states that it is g’nai for a talmid chacham to sit next to an am ha’aretz at a meal).
The reason for this halachah is because a talmid chacham eats in a more refined manner than the am ha’aretz. This is not simply a matter of finesse, rather, there are explicit halachos that are mentioned in the poskim (aside from the halachos that the Shulchan Aruch in siman 170 speaks about), on how to conduct oneself during a meal.
A small sampling:
1. Talking while eating is discouraged (Mechaber ibid 170:1).
2. The proper amount to eat at a time is less than a k’beitzah (ibid 170:7).
3. When drinking, the entire cupful should not be consumed in one gulp, rather it is proper to finish it in two swallows (ibid 170:8).
4. It is improper to take a bite out of the food and then leave it on the table (ibid 170:11).
5. One should not eat or drink while standing (Be’er Heitiv ibid citing Rokeiach).
6. It is proper for the host to show the guests where the restroom is (M’kor Chaim).
7. One should not lick his fingers during eating (Rokeiach).
8. It is impolite to wolf down the food, rather, eating should be done slowly (Ben Ish Chai).
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The Gemora discusses the process of matching a man and woman together for marriage, and states that for the first match, a heavenly voice proclaims who will marry whom, while for a second match, the process is as difficult as the splitting of Yam Suf. Rav says that the heavenly voice announces forty days before the forming of a fetus, “The daughter of So-and-so will marry So-and-so.” The Ran explains that this at the point of conception, since an embryo is halachically considered a fetus at forty days from conception.
The Maharsha (Sotah 2b) says that the voice comes out at the time of the husband’s conception, which is why the wife is referred to only as the daughter of someone, and not by name.
Tosfos (22a Arbaim) states that through prayer, one can modify the match that he gets, even in his first match.
The Chasam Sofer (7:34) writes in the name of the Arizal that the “first match” referred to is not necessarily a first marriage. When a soul is created and placed in the world, it has a matching half in someone of the opposite gender. This match is the first match. As the person grows up, they develop, sometimes positively, and sometimes negatively. When they marry, their “first match” may not still be appropriate for who they have become, necessitating a “second match,” based on their actions since birth, and this match is the more difficult one.
The Gemora brought a braisa, in which Rebbe said that although a Kohen who does not know his rotation week should never drink wine, he is allowed to by dint of his problem. Rashi explains that Rebbe is not concerned with the imminent rebuilding of the Bais Hamikdash. Therefore, Rebbe is saying that destruction of the Bais Hamikdash, which led to the problem of not knowing the rotation, also is the solution which allows them to drink nowadays.
Tosfos Harosh says that Rebbe is saying that a decree that a Kohen can never drink wine is too onerous. Therefore, the problem of not knowing which rotation he is in, also leads to the untenable situation, which therefore allows them to drink wine.
The Rambam (Bias Mikdash 1:7) rules that a Kohen who does know which rotation he is in may not drink wine during his week, even nowadays. This seems to follow the Tosfos Harosh, who says that the license to drink is only for someone who would otherwise never drink.
The Raavad rules that all Kohanim may drink nowadays, which seems to follow Rashi, who says that the license to drink is due to the absence of a Bais Hamikdash, which applies to all Kohanim.
The Shulchan Aruch (OH 128:38) rules that a Kohen who drank a revi’is of wine may not bless Birchas Kohanim, since it is a form of service. The Gemora (Taanis 26b) states that we therefore do not say Birchas Kohanim at Minchah, since it is after a meal, at which the Kohen may have ingested a revi’is of wine. This concern also is the rationale behind the custom in some congregations to shift the Birkas Kohanim on Simchas Torah to Shacharis, lest the Kohanim drink a revi’is of wine after the reading of the Torah, before Musaf.
Bas Sheva or BasSheva?
By: Meoros HaDaf HaYomi
HaGaon Rabbi Chaim of Volozhin wondered if one should write the name Bas-Sheva in a get as one or two words and he asked his mentor, the Vilna Gaon. The gaon told him that “I have supported my foundations on 13 words” (from the selichos prayers). Rabbi Chaim then remembered our Gemora in which Rashi remarks that the above verse contains thirteen words (s.v. Kinechah). Counting the words, though, he found fourteen! The only solution, then, is that Bas-Sheva should be written and counted as one word (Kol Eliyahu in the name of Emunah Vehashgachah).
HALACHAH ON THE DAF
Mentally Preparing for Shemoneh Esreh
The Gemora mentions in passing that according to one explanation, the verse of “Shivisi Hashem l’negdi samid” teaches us that when one davens, he should visualize that the Divine Presence is in front of him. The Shulchan Aruch (Orach Chaim 98) writes an entire siman on the topic of realizing that one is talking to Hashem and how we should approach the mighty concept of tefillah.
First of all when davening, we must concentrate on the explanation of the words that our mouths are saying. Mishnah Berurah stresses that one must understand the simple meaning, and not delve into the esoteric depths of tefillah, and furthermore, all the mental preparations that are required, should be done before one starts Shemoneh Esreh, for during davening, one must solely focus on the simple translation.
One must expel all of his thoughts until his mind is clear, and he should meditate as to what amount of meticulous preparation he would put in when speaking before an earthly king, how much more so when speaking to Hashem. If a thought does enter his mind during davening, he should wait quietly until the thought goes away. The Mishnah Berurah cites an interesting She’lah who states that as a segulah not to be interrupted with other thoughts during tefillah, before davening. one should say the pasuk “Lev bara li Elokim v’ruach nachon chadash b’kirbi” three times, and each time he recites it he should pass his right hand over his forehead. If thoughts enter during davening, he should do as the above; just instead of reciting the verse out loud, he should think it in his mind.
The Rema adds that before davening one should ponder the greatness of Hashem and conversely the smallness of man.
One must daven as a poor person pleading for mercy, slowly enunciating each word. One must make sure not to daven in a way that it seems that he can’t wait to finish. Mishnah Berurah points out that one must be exceedingly careful in this regard, since there are poskim which hold that if one davened in such a manner he must daven again. Although we don’t rule in accord with these poskim, it shows the severity of not davening properly.
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The king or the Kohen Gadol may not be members of the Beis Din involved with the intercalation of the year The king cannot on account of the upkeep of his army (since they are paid annually, he might wish to make a leap year in order to save money). The Kohen Gadol cannot because of the cold the following year (since he might be against intercalation of this year, for if the year is extended, Yom Kippur, being a month later, will be colder, and it will cause him distress during his five immersions on that day).
Tosfos asks from a Gemora in Yoma (31b) which states that if the Kohen Gadol found it difficult to immerse in a cold mikvah, iron bars were heated prior to Yom Kippur and placed into the mikvah to warm it up!?
Tosfos learns that the Kohen Gadol would be cold from the floor of the Beis Hamikdash, since he performed the Temple service while barefoot.
The Margoliyos Hayam answers Tosfos’ question by saying that the Mishna is Yoma states that they would only do that if the Kohen Gadol was finicky or elderly; otherwise, it would not be done for him. Accordingly, a healthy Kohen Gadol would not want the year extended.
Alternatively, he answers based upon Reb Akiva Eiger, who asserts that this allowance was not permitted for his first immersion on Yom Kippur, since that did not take place in the sanctified part of the Temple; rather, it was done outside. The Rabbinic prohibition against throwing a heating element into the cold mikvah was only permitted in the Mikdash (based upon the dictum of “ein sh’vus ba’Mikdash). Accordingly, the Kohen Gadol would not want the year extended, for there was no way to avoid the cold water of the first immersion.
HALACHAH ON THE DAF
When is One Exempt from Returning a Lost Item
The Mishna had stated: The Kohen Gadol may testify and others may testify about him
The Gemora asks from a braisa: And you will look away. This teaches that sometimes one looks away (from returning a lost article), and sometimes one cannot look away. What is the case? If a Kohen saw a lost object in the cemetery, or an elderly man saw an object that it was not honorable for him to carry, or if his work is more valuable that the lost object of his friend, this is why it says: And you will turn away from them. [Seemingly, it should not be respectful for a Kohen Gadol to testify on behalf of a common person!?]
The Shulchan Aruch (Choshen Mishpat 263:1) clarifies that even a young Torah scholar, or a well respected person (Aruch Hashulchan), is exempt from returning a lost item which is below their dignity to deal with, for example a bale of hay.
Although they are usually exempt from returning a lost item that is beneath their dignity to deal with, they will be required to do so if they actually moved or picked up the item, since they started the mitzvah (ibid 263:2).
The Shach directs us to a halachah (in 261:2) where the Shulchan Aruch rules that if one found an animal grazing in someone else’s vineyard or field, then he is obligated to return it, because the animal is damaging that property. This is termed aveidas karka (in other words, the owner of the vineyard is being caused a loss, so the person seeing the animal grazing has an obligation to return it to his owner, so as not to cause a loss to the owner of the field).
At first glance it is difficult to see the apparent connection. Rabbi Akiva Eiger explains that the Shach is proving that since the Shulchan Aruch does not state that he should just simply move the animal to a ownerless field, that shows that once he moved the animal he is obligated to return to its owner. However, the Or Zerua cites Ritva who disagrees and maintains that it is enough if he merely moves it to an ownerless field.
The Shulchan Aruch (ibid 263:3) rules that if the these people want to go beyond the call of duty and lower themselves to return the lost item, they may do so. The Rema disagrees, and quotes Rosh that the most such people are allowed to do is to pay the owner for the lost item.
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The Mishna had stated: A voluntary war (if they are not waging war against the seven nations that were occupying Eretz Yisroel) requires a Court of seventy-one.
Rabbi Avahu said: It is written: And before Elozar the Kohen he shall stand [and Elozar shall inquire for him by the judgment of the Urim before God; by His word shall they go out (to war) and by His word they shall come in from war, both he and all the children of Israel with him and all the congregation]. He refers to the king (Yehoshua); and all the children of Israel with him refers to the Kohen anointed for war; and all the congregation refers to the Sanhedrin.
The Gemora asks: But perhaps the verse is teaching us that it is the Sanhedrin (or king or the Kohen anointed for war) whom the Torah tells to inquire of the Urim ve’Tumim (but the Sanhedrin do not need to be consulted before going to war)!?
Rather, it may be derived from a verse cited by Rav Acha bar Bizna in the name of Rabbi Shimon Chasida: There was a harp hanging over David’s bed and when it reached midnight, the north wind would blow on the harp and it played by itself. At that point, David would get up and study Torah until the break of dawn. After the break of dawn, the Chachamim came to him and said: “Our master, the king! Your nation Israel requires sustenance.” David replied, “Go and sustain each other.” They said back to him, “A handful cannot satisfy a lion, nor can a pit be filled up with its own earth.” He said to them, “Then go out and stretch your hand against the enemy (for plunder).” They immediately took counsel with Achitofel (as to their battle strategy) and consulted the Sanhedrin (for permission and that they should pray for them) and questioned the Urim Ve’Tumim (if they would be successful or not).
Rav Yosef said: What is the verse that states this? It is written: And after Achitofel was Benayahu the son of Yehoyada and Evyasar; and the commander of the king’s army was Yoav. Achitofel is the adviser; Benayahu the son of Yehoyada refers to the Sanhedrin, and Evyasar refers to the Urim ve’Tumim.
The Gemora in Brochos (3b) asks: And did David actually know when midnight was? If Moshe didn’t know, is it possible that David knew? [Although it is possible that David had some type of clock, and we know that such things existed in those times as is evident by the Zohar in Lech Lecho, where he mentions a type of alarm clock, which functioned through water, nevertheless, the Zohar states that it was impossible to determine the precise moment of midnight through the use of those man-made items!?]
The Gemora answers: David knew when it was midnight, for he had a sign which notified him, as Rav Acha bar Bizna said in the name of Rabbi Shimon Chasida: There was a harp hanging over David’s bed and when it reached midnight, the north wind would blow on the harp and it played by itself. At that point, David would get up and study Torah until the break of dawn.
The Mefarshim ask: If so, why couldn’t Moshe make use of a harp as well?
The Satmar Rebbe answers based on the following Yonasan ben Uziel in Parshas Yisro: On the night that the Jewish people were about to leave Egypt, the clouds lifted them up and brought them to the place where the Beis Hamikdash would be built in order for them to offer the korban pesach.
The Gemora in Yevamos (72a) states that for all forty years that the Jewish people were in the Wilderness, the northern wind did not blow for them. One of the reasons cited was because the wind would cause the Clouds of Honor to scatter.
Accordingly, it can be explained that the night of Yetzias Mitzrayim, the northern wind could not blow, for if it would have, it would have scattered the Clouds of Honor, and they would not have been able to “fly” to Yerushalayim. It was for this reason that Moshe could not determine the precise time for midnight on that night through the usage of a harp, for the harp would begin to play when the northern wind blew on it, and that night, the northern wind did not blow at all.
HALACHAH ON THE DAF
The Gemora informs us of David Hamelech’s custom of waking at midnight and learning until dawn. Today this is known as Tikun Chatzos, for that time of night is a particularly auspicious time for learning and prayer, especially to lament the destruction of the Bais Hamikdash and to pray for its speedy rebuilding.
There is a dispute among the Poskim as to when exactly Chatzos is. Without going into a lengthy explanation of the various opinions, suffice to say that the Mor Uktzia, Shulchan Aruch Harav and the Mishnah Berurah all agree that Chatzos is always exactly at midnight, meaning the halfway point between tzeis hakochavim (when three stars are seen) and alos hashachar (dawn).
Although we see from this Gemora that David Hamelech learned after Chatzos, and this would imply that we should do so as well, in regard to Tikun Chatzos, there are Achronim that hold otherwise. While the Mishnah Berurah, Kaf Hachaim and others advocate that one should learn from Chatzos and on, the Arugas Habosem held that one should learn the first half of the night, rather than the second. Similarly the Chasam Sofer writes that most people that learn at night do so the first half of the night. The Seder Hayom explains why one should rather learn the first half of the night, for the simple reason that he might find it hard to get up in middle of the night to learn, and the night would pass without him learning.
Tikun Chatzos is a great mitzvah, but it cannot come at the expense of falling asleep during davening (Elya Rabbah). Similarly, a person who is by nature made of a weaker composition and needs his sleep, he need not arise for Tikun Chatzos.
The Gemora discusses the opinions in the Mishna regarding wild animals, citing three opinions:
1. The Sages say that all animals, wild or not, are killed only if they kill, and then only in a court of twenty-three.
2. Rabbi Eliezer says that wild animals should be killed by anyone, without waiting for a court.
3. Rabbi Akiva says that only a snake should be killed by anyone, without waiting for a court, but all other animals must be killed only by a court of twenty-three.
Rish Lakish and Rabbi Yochanan differ on the terms of Rabbi Eliezer’s and Rabbi Akiva’s exceptions. Rish Lakish says these animals are only killed when they kill, while Rabbi Yochanan says that these animals are killed under any circumstances, since they are inherently dangerous.
Tosfos (15b v’Rabbi Yochanan) compares our Mishna to the Mishna in Bava Kamma (15b), which discusses which animals are presumed to be accustomed to damage, and therefore must pay full damages in all cases. The Mishna says that the Sages consider all wild animals to be accustomed to damage, while Rabbi Elozar says that they can be domesticated. However, all agree that a snake is considered accustomed to damaging. [Tosfos points out that Rabbi Elozar in the Mishna in Baba Kama is not identical to Rabbi Eliezer in our Mishna.] Tosfos asks how we can reconcile the Mishna in Bava Kamma, in which all agree that a snake cannot be domesticated and is assumed, a priori, to be dangerous, with Rish Lakish’s position in Sanhedrin, that all agree that a snake which has not killed may not be killed. Tosfos offers two answers:
1. In order to actually kill the snake, it must have proven its danger by killing someone. However, we assume any snake is potentially dangerous, and we therefore require the owner to guard the snake well, obligating him in full payment in the case of actual damage.
2. Rabbeinu Tam says that the Mishna in Sanhedrin refers to animals that were simply domesticated by training. All agree that a snake cannot be trained, and is still dangerous. However, the Mishna in Sanhedrin is referring to animals that have been restrained (e.g., by chains). Such protection is the subject of the dispute in the Mishna, and Rish Lakish’s limitation.
The Rambam (Sanhedrin 5:2) rules like Rabbi Akiva, according to Rish Lakish’s explanation.
The Rishonim point out that we rule like Rish Lakish since the Gemora brought a braisa which supports him.
The Ra’avad, however, challenges the Rambam’s ruling like Rabbi Akiva, since we generally rule like the Sages against Rabbi Akiva.
The Radvaz says that the Rambam accepted Rabbi Akiva’s special treatment of a snake, since the Mishna in Bava Kamma (15b) explicitly states that a snake is always considered in the habit of damaging.
The Rashash explains that although Tosfos distinguished between the Mishnayos, we still see in the Mishna in Bava Kamma that a snake is treated differently than other wild animals. From that case, we extrapolate to the case of our Mishna.
The Kesef Mishnah says that the Rambam ruled like the majority of opinions in each case. In the case of all wild animals except for a snake, both Rabbi Akiva and the Sages rule that a court of twenty-three is needed, while in the case of a snake, both Rabbi Akiva and Rabbi Eliezer rule that anyone should kill it. [See the Rashash for a discussion of the status of the Sages in such an analysis.]
The Noda beYehudah (Mahadura Tinyana Y”D 10) discusses whether someone may hunt for sport. He first analyzes the potential formal prohibitions, including tza’ar ba’alei chayim – causing pain to creatures, and bal tashchis – not wantonly destroying, and says that they are not applicable to such a case. However, he states that hunting for no gain (e.g., meat or hides, or for employment) is not a Torah value, with the only examples in the Torah of such behavior being Nimrod and Esav. He raises the possibility that one may hunt and kill wild animals, in accordance with Rabbi Eliezer, who says that anyone should kill wild animals, due to their danger. He rejects this on two counts:
1. This does not fit with our ruling. We rule like Rish Lakish, who limits the Mishna to a case where the animal already killed. Even under those circumstance, we rule like Rabbi Akiva, and not like Rabbi Eliezer.
2. The Mishna is only discussing wild animals who are among people, and allows one to kill them to protect the people. However, wild animals that are in their natural habitat, not threatening people, are not considered a danger to be eliminated.
Finally, he prohibits such hunting, since the sport itself is inherently dangerous, as expressed by Esav, who told Yaakov that he is going to die young, due to his sport. Although the Torah allowed one to put oneself in danger for employment, the Torah did not allow this simply for sport.
HALACHAH ON THE DAF
The Gemora explains that the difference between the Tanna Kamma and Rabbi Akiva (which at first glance both Tannaim seem to be saying the same thing; a wolf, lion etc. that killed a person must be killed by a Beis Din of twenty three), is if a snake killed a person. According to Rabbi Akiva, it is not in the same category as the wolf, lion etc. while the Tanna Kamma is of the opinion that it is.
Rashi explains Rabbi Akiva according to the Mishna in Bava Kamma (15b), where there is a dispute between the Tanna Kamma and Rabbi Eliezer whether a wolf, lion etc. automatically have a status of a mu’ad (an animal which is established after three times that it damages) or not, but they both agree that a snake is always considered a mu’ad.
The Shulchan Aruch (Choshen Mishpat 389) explains the concept, possible scenarios, and their various halachic outcomes.
Any creature which is owned by a person that damages, the owner is liable to pay. This does not apply to a slave (Tur). Not all damages are paid in full, rather, only damages that can occur when the creature does an action that comes naturally to it. For example, an animal that caused damage by eating someone else’s hay, or if it stepped on items while walking, these types of cases would require the owner to pay in full, since the owner should have thought of that natural scenario and stopped his animal from damaging. In instances where the animal damaged in an unnatural way, for example, a cow that bit someone, then he only pays half of the damages.
Therefore if an animal damages three times in the same unnatural manner, then we say that this particular thing (for example biting) became natural to this animal, so the owner would have to pay for the damages in full. This is the logic behind tam and mu’ad.
However, there are six creatures (wolf, lion etc. and snake) which the Chachamim determined are naturally inclined to cause damage, even if they are domesticated, so it will make no difference as to what specific action caused the damage, for any action it does, it will have the status of a mu’ad, and therefore the owner is liable to pay in full.
However, the Rema disagrees and is of the opinion that only a snake has an automatic status as a creature that will damage through any action, but the other five are only a mu’ad for specific actions that are natural to them, for example, a lion to be doires and a wolf to be toref, but not vice versa.
By: Rabbi Avrohom Adler
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In the sefer Yereim (259) it is written: That which Jews all over the world have the custom to announce the new month on Shabbos before Rosh Chodesh (birchas ha’chodesh), this is not the sanctification of the new month, for we do not have the Rosh Beis Din amongst us and he is an integral and essential part of this mitzvah. The Rishonim established this custom merely as a way of notifying the people when Rosh Chodesh will be.
The Magen Avraham (O:C, 417) writes that it is, nevertheless, the custom to stand by birchas ha’chodesh - specifically when we are saying that “Rosh Chodesh will be on Such-and-such a day,” similar to when Beis Din sanctified the new month, which was done while standing.
Reb Akiva Eiger (ibid) asks: Where is it found that the sanctifying of the month was done standing? On the contrary! It would seem from the beginning of the third perek of Rosh Hashanah that it was done while sitting!?
Reb Moshe Feinstein zt”l (O:C I; 142) answers this question based upon a Gemora in Rosh Hashanah (24a) which states that first the Rosh Beis Din would say, “Mekudash” – “It is sanctified,” and then the entire congregation would say in unison, “Mekudash, mekudash.” And certainly, the entire congregation, who were there at the Beis Din, were not all sitting; they were standing! We find like this by the mitzvah of chalitzah as well, where the Gemora in Yevamos (106a) states that there is a mitzvah for all the people standing there to say “chalutz hana’al.”
Reb Moshe understands that the Rosh Beis Din’s saying “Mekudash” was the p’sak din – the witnesses were fully cross-examined and the Beis Din came to a conclusion with respect of the new month. The Rosh Beis Din announced this ruling. Then, there was a mitzvah on the congregation to sanctify the new month. This, they accomplished, by saying, “Mekudash, mekudash.” He derives this from a Scriptural verse, and it can be inferred from the language of the Rambam, as well.
That which we recite birchas ha’chodesh is based upon the congregation’s saying of “Mekudash, mekudash.” It is not on account of the Rosh Beis Din’s announcement of the judgment, for this was already done by Hillel’s Beis Din (when he arranged the calendar for the future). This is why the custom is to stand. The inference of the Gemora in Rosh Hashanah that they were sitting is only in reference to the Beis Din, not to the people standing there. It also stands to reason that the “Mekudash, mekudash” should be said standing, for this was the mitzvah of sanctifying the new month, and mitzvos (as a general rule) are performed while standing.
HALACHAH ON THE DAF
The Gemora teaches us that if Reuven testifies in Beis Din that Shimon cohabited with his wife, and with Reuven there is another witness, we can consider them two witnesses and Shimon gets killed. The Gemora explains that it would work only because of palginan dibura (we split his words). Rashi explains that we accept his testimony in regard to Shimon but not in regard to his wife, since she is related to him and he is not a valid witness.
The Shulchan Aruch (Choshen Mishpat 34:26) has several cases where palginan dibura applies:
1) A loveh (borrower) may testify that the malveh (lender) lent money to him with interest, and although he cannot testify on himself, we enact palginan dibura and we split his sentence. Instead of hearing the entire testimony that the malveh lent money to him with interest, we only listen to part of it; i.e., the malveh lent with interest (S’ma). Therefore, if there would be another witness, Beis Din will disqualify the malveh from being believed when giving testimony in the future (an oveir aveira is disqualify as a witness).
2) Reuven testifies in Beis Din that Shimon sodomized him, we invoke palginan dibura, and if there would be another witness testifying, Beis Din will disqualify him.
3) Similarly, if Reuven testifies in Beis Din that Shimon cohabited with his wife, and there is another witness, Beis Din will disqualify Shimon (the Shulchan Aruch doesn’t state that he gets put to death, because the Shulchan Aruch is talking to our generation, where there isn’t any court-imposed death penalty).
The Rashba distinguishes between the case where he says, “Shimon cohabited with my wife,” and where he said, “I cohabited with Shimon’s wife.” In the latter case, we don’t say palginan dibura.
4) Reuven testifies in Beis Din that Shimon sodomized Reuven’s animal, if there will be another witness, Beis Din will disqualify Shimon. The S’ma points out that this case is different than the above cases, since there is no such concept that Reuven is related to his animal, and therefore, in the times of the Sanhedrin, we would kill the animal as well.
Not in all cases do we say palginan dibura. The Mordechai (Yevamos) and Tosfos in Kesuvos (18b) rule that cases which are not common, or if you have to add a reason to his sentence, then we don’t say palginan dibura.
By: Rabbi Avrohom Adler
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And Rav Yosef said: If a man says, “So-and-so committed sodomy with me against my will,” he himself with another witness can combine to testify against the perpetrator. If, however, he said, “So-and-so committed sodomy with me with my consent,” he is a wicked man and the Torah states: Do not use a sinner as a witness.
Raba said: Every man is considered a relative to himself, and he cannot incriminate himself (as a sinner).
The following question was raised to the poskim years ago: A man testified in Beis Din that he married off his minor daughter, but he refused to state the identity of this man. His intention was to put pressure on his wife for her to accept a divorce without receiving any alimony payments and to have equal visitation rights for the children. Do we accept his testimony and consider the girl as a married woman?
Rav Eliyahu Pesach Ramnik, Rosh Yeshiva of Ohavei torah in Far Rockaway applied the principle of ‘a person is not believed to establish himself as an evil person’ as the basis for his ruling. He explained: The father, who is testifying that he married off his minor daughter, is establishing himself as a wicked person for several different reasons. Firstly, if in truth, he has married her off in order to extort money from his wife, using a mechanism of the Torah in this manner causes a tremendous desecration of Hashem’s Name, and if the wife does not concede to his demands, the child will remain an agunah her entire life. This will result in an even bigger chilul Hashem. Secondly, he is transgressing the prohibition of paining another fellow Jew. The pain and the embarrassment that he is causing his wife and daughter to endure is indescribable. Thirdly, the Gemora in Sanhedrin (76a) states that one who marries his daughter to an elderly man transgresses a Biblical prohibition of causing his daughter to sin, since she will not be satisfied in that marriage; certainly in this case, the father will be violating this prohibition, for the daughter does not even know the identity of her true husband. Based on these above reasons, it emerges that by accepting the father’s testimony, he would be rendered a rasha, and therefore, his testimony should not be accepted and his daughter would not be regarded as a married woman.
Rav Yitzchak Zilberstein, in his sefer Chashukei Chemed questions the above conclusion. He cites several Acharonim who rule that when a man has already been established as a rasha regarding other matters, his testimony can still be valid (provided that he is not disqualified from offering testimony) even though it also renders him a rasha. The Chacham Tzvi (responsa 3) rules that if someone has violated a light transgression in our presence, he would still be believed that he has violated an even stricter prohibition. This is because his testimony is not rendering him a rasha; he already has established himself a rasha. It is for this reason that we will be compelled to accept the father’s testimony that he married off his daughter, for this man has already been established as a rasha. He is desecrating the name of Hashem by using the Torah’s mechanisms for evil purposes and by causing pain and grief to his wife and to his daughter.
HALACHAH ON THE DAF
The Gemora learns that even if there are a hundred witnesses that witnessed an event, but included in those witnesses were relatives or otherwise disqualified witnesses, then the all the witnesses may not testify. Rebbe clarifies that this is only true when the relatives or otherwise disqualified witnesses also gave the warning, but if they merely witnessed an event along with others, they can’t nullify the testimony of the other witnesses. Rashi explains that by giving the warning, they show that they too want to be considered witnesses, therefore they negate the other witnesses’ testimony, since part of the witnesses are disqualified.
Who is considered disqualified for testimony?
1) Relatives - Relatives: There are many different scenarios; we will only touch on a few.
We learn that relatives cannot be considered witnesses from the verse: Fathers shall not die through their sons. The Chachamim derived from this verse that the father cannot die due to testimony from his son, and vice versa. Aside from a son there are other relatives that cannot testify; a) brothers, b) grandson, c) first cousins, d) second cousins. All these cases apply to females as well, meaning a sister cannot testify on a brother and vice versa etc. (Choshen Mishpat 33:2)
If one cannot testify regarding a woman (for example a sister), he is similarly prohibited from testifying for her husband, and conversely, if one cannot testify for a certain man, he also may not testify for his wife (ibid 33:3). However, he may testify for that spouse’s relative (ibid 33:5).
Mechutanim may testify for each other (ibid 33:6).
2) Oivrei Aveirah - One Who Committed a Sin: If one transgressed any prohibition that is punishable by either death or lashes, he is disqualified for testimony until he repents. It makes no difference if he sinned due to desire, or if he sinned as an act of rebellion (ibid 34:2).
If one transgressed a Rabbinic prohibition, he is disqualified only on a Rabbinic level (there are halachic differences between them).
3) Other P’sulei Eidus: A minor is disqualified for testimony, even if he is very bright. One leaves the status of a minor once he shows signs of physical maturity, usually when he turns thirteen years old.
One who is incoherent in a certain issue is also disqualified (ibid 35:8). If he is mentally deranged, he is also disqualified (ibid 35:10).
The Gemora discusses what the dispute between the Sages and Rabbi Meir about the number of judges for a case of motzi sheim ra is actually about. Ulla and Rava explain that the dispute is not an inherent dispute of how many judges are needed for this case, but rather depends on an external concern that the Sages have. Ulla says the Sages are concerned with la’az – a rumor, while Rava says that the Sages are concerned with the honor of the originally convened court.
Rashi explains that according to both of these explanations, the issue brought before the court is the husband’s demand to void the wife’s kesuvah, since she was not a virgin at the time of marriage. Rashi explains that the husband is believed to void the kesuvah, as the Gemora in Kesuvos (10a) states, since the Sages, who instituted kesuvah, assumed that a man would not lie about this, since he stands to lose the money spent on his wedding meal.
Ulla is explaining that the Sages are concerned that when this case is brought to court, although the husband is not claiming infidelity, witnesses to infidelity may indeed hear of the case and come forward, transforming this to a capital case. We therefore begin with a court of twenty-three, to account for that possibility.
Rava says the case is where the husband did claim infidelity, but wasn’t able to produce witnesses to prove it. When the court then dispersed, the husband requested that the remaining judges void the kesuvah. The Sages are concerned that adjudicating that with the partial court that remains would be disrespectful the original judges, and therefore they must reconvene.
The Gemora cites a braisa, which states that if t’va’o mamon – he claimed from him money, only three judges are needed, but if t’vao nefashos – he claimed from him a capital crime, twenty-three are needed. According to Rava, the first clause is a case where there was no claim of capital infidelity, and therefore there is no issue of the judges’ honor, leaving a monetary case for three judges. However, according to Ulla, even if the case began as monetary, we should be concerned about witnesses arriving later.
Rava answers that the braisa is a case where the husband produced witnesses that testified to her infidelity, but these were fully refuted by the father’s witnesses, who put the original witnesses in a different place at the time of their testimony. The husband is now liable 100 sela to the father for his false claim. The braisa is stating that to adjudicate the father’s monetary claim, only three witnesses are necessary. According to Rashi, the Gemora is introducing the aspect of the father claiming his monetary damages only at this point in the Gemora. All earlier discussions of monetary judgment were purely of the husband’s claim to void the kesuvah.
Tosfos (8a Motzi) cites Rabbeinu Tam, who disagrees with Rashi’s reading of the Gemora’s first two answers. Rabbeinu Tam challenges Rashi’s reading based on the following points:
1. Motzi sheim ra is listed in the Mishna along with fines paid by a rapist and a seducer, indicating that it similarly is a case of a fine. The husband’s voiding the kesuvah does not fit this pattern, as it is purely a monetary case.
2. Generally, motzi sheim ra is used to refer to the money paid by the husband when his claim is found to be false.
3. The three judges required in the Mishna are experts. However, cases of voiding a kesuvah are routinely judged by non expert judges, outside of Eretz Yisroel, indicating that the Mishna is not discussing such a case.
4. Rashi’s reading translates the la’az of Ulla as the witnesses hearing about the case and coming forward. Generally, la’az has a connotation of being a false rumor, not simply news spreading.
5. In Rava’s explanation, the husband says to the remaining judges, “At least judge the monetary aspect.” According to Rashi, all the husband wants to do is not have to pay the kesuvah, not collect any money. As long as the wife is not claiming it, he has no urgency to adjudicate the matter.
6. The Gemora’s explanation of the braisa according to Rava’s opinion is that the first clause is referring to a husband who is only adjudicating the kesuvah. The braisa says tva’o mamon – if he claimed from him money. According to Rashi, it should say he claimed from her (the wife), and in fact, the husband is not claiming anything, but simply refusing to pay.
7. Finally, when Rava explains the braisa according to Ulla’s opinion, he explains that the second clause of the braisa is stating that at the outset of a husband’s claim – at which point, it may lead to a capital case – twenty-three judges are needed. The simple reading of the Gemora, however, is that it is a different circumstance of the same case as the first clause, not a new case.
8. Rabbeinu Peretz points out that Rabbi Meir, one the opinions discussed, holds that a husband is obligated from the Torah to pay a kesuvah. The Gemora is Kesuvos that states that husband is believed to void his wife’s kesuvah is based on the assumption that the obligation of kesuvah is purely Rabbinic. Therefore, Rabbi Meir may not even agree that a husband may void the kesuvah, so he cannot be disputing how many judges are needed to deal with such a claim.
Instead, Rabbeinu Tam says that the whole discussion of Motzi sheim ra is of the 100 sela the husband must pay when his claim is disproven. Ulla says the case is when the husband brought witnesses, who were contradicted by the father’s witnesses.
Rabbeinu Tam says that although the witnesses were not refuted (by being placed at a different place at the time of testimony), but simply contradicted in the details of their testimony, the husband still must pay, since his claim was dismissed by the court. (See Tosfos 8b v’haivi for further discussion of this position).
If the father’s witnesses refuted the husbands’ by putting them in a different place at the time of their testimony, we assume no further witnesses will come forward. However, since they only contradicted them, other witnesses may still come. The Sages are concerned that if the twenty-three judges are disbanded, and then a new court of twenty-three will be necessary if new witnesses come, it will lead to la’az - false rumors that the first court was incompetent and replace with the new court. We therefore leave the first court in place. Rabbi Meir is not concerned about such rumors.
Rava says that the case is where the father produced witnesses to refute the husband’s witnesses. Since the husband’s witnesses were trying to kill the wife, they are liable to the same punishment as aidim zomemim – conspiring witnesses. However, the case of the Mishna is where the court of twenty-three dispersed, due to some external event (fear of the government, or another urgent matter they needed to attend to). At that point, the father requested that the remaining judges adjudicate his monetary claim. Rabbi Meir allows this, but the Sages say that this will disrespect the original twenty-three, and they must therefore be reconvened.
Rabbeinu Tam’s reading of the Gemora addresses all of his issues with Rashi’s:
1-3: As it usually does, motzi sheim ra in the Mishna refers to the money paid by the husband to the father, which is a fine. It is therefore listed with rape and seduction, and requires three expert judges.
4: The la’az is the false rumor people may spread about the original court.
5: The request to “At least judge the monetary aspect” is made by the father, who is trying to collect money from the husband.
6: The father is claiming from him (the husband) the money of the fine of motzi sheim ra.
7: The braisa’s first clause is where the father’s witnesses refuted the husband’s before the verdict, and the husband’s false witnesses are therefore not punished by death. However, the second clause is a similar case, but instead of the witnesses being refuted, they are contradicted, leaving the possibility that new witnesses will come, and establish infidelity.
8: Since we are not discussing the kesuvah, whether it is Rabbinic or from the Torah is irrelevant.
HALACHAH ON THE DAF
The Gemora mentions that zimun needs at least three people. The Gemora in Brachos (47a) derives the concept of zimun from the verses of “gadlu lashem iti”… and “ki shem Hashem ekra havu godel leilokeinu,” and from there, we also learn that a minimum of three is required (since the singular is speaking to the plural and together they equal three).
The person that received the honor of bentching starts off by saying “rabbosai nivarech” (some have the minhag to say it in yiddish “rabbosai mir velen bentchin”), and everyone else responds with “y’hi sheim Hashem mivorach mei’atah v’ad olam.” This originated with the Zohar. (Magen Avraham).
Immediately after that, he continues with “nivarech she’achalnu m’shelo” and the rest answer “baruch she’achalnu m’shelo uv’tuvo chayinu.” After that, he too repeats “baruch she’achalnu m’shelo uv’tuvo chayinu” (Orach Chaim 192:1). There is a machlokes Achronim if the other people bentching should answer amen, the Mishna Berurah writes that the minhag is not to answer.
If there are ten or more people that are bentching together then we add Elokeinu (nivarech Elokeinu, baruch Elokeinu). If he forgot to say Elokeinu and the others didn’t yet respond, then he may say it again properly; once they answered, however, he does not repeat it (ibid).
By: Meoros HaDaf HaYomi
The First Question
A person’s judgment starts only with asking him about his learning Torah.
Our sugya cites Rav Hamnuna that a person’s final judgment in the beis din of the World to Come starts with asking him about his learning Torah. However, Tosfos (s.v. Ela) compare this statement to the Gemora in Shabbos (31a), which asserts that a person is first asked if he did business faithfully and only then asked if he set aside fixed times for Torah study.
The Gerer Rebbe, author of Imrei Emes zt”l, answers this question in the spirit of our sages’ interpretation of the verse “And you shall love Hashem” – “that you should cause His name to be loved: One should learn the Torah, serve Torah scholars, do business faithfully and speak softly with people. What do people say about him? “Happy is his father who taught him Torah! Happy is his teacher who taught him Torah! How pitiful are those people who have not learnt Torah. That person who has learnt Torah – see how he exhibits such fine behavior.” But he who learns Torah and serves Torah scholars but fails to do business faithfully or speak nicely with people – what do people say about him? “How pitiful is that person who has learnt Torah!” (Yoma 86a). Hence, even though a person is first judged about the Torah he has learnt, he must first be examined if his Torah caused a sanctification of the Name by practicing business faithfully (Imrei Emes, Likutim).
The Thieves Who Were Not Caught
If the beis din takes his garment as payment for his debt, he should sing a song and go on his way.
Our Gemora says that if a beis din takes a person’s garment in payment for some debt that they ruled he was to remunerate, he should be glad.
The Chafetz Chayim zt”l offered the following parable to explain this statement. A group of experienced bandits enlisted some new members and, so as to easily identify each other, agreed that all the members should wear the same clothing. Once, after a hard night’s work, they went to an inn where they ate and drank to inebriation. After the meal some of them refused to pay and the innkeeper let them go only if they gave him their identifying garments as a pledge. A few days later the police found out about the bandits’ “uniform” and arrested them all, with the exception of those who had left their clothing at the inn. “Aha!” they laughed, “The innkeeper did us a big favor when he forced us to give him our clothing.”
A person should know, says the Chafetz Chayim, that any stolen garment or other purloined article in his possession is a reason for the loss of the rest of his wherewithal. If, then, a beis din takes that garment and gives it to the person to whom he owes a debt, they have done him a big favor as they have saved the rest of his possessions (Ahavas Chesed, II, Ch. 1).
The Talking Tree
If the matter is as clear to you as your sister’s being forbidden to you, pronounce it, but if not, do not pronounce it.
Our Gemora emphasizes a dayan’s duty to seriously consider the ruling he intends to announce and stresses that his decision must be completely clear to him.
Once, the Brisker rav, Rabbi Chayim Soloveichik zt”l, wanted to impress upon his son, who became the next Brisker rav, how clear everything must be to the person who says it. One’s pronouncements, he said, must be the firm and utterly unyielding truth, and he presented the following parable: Imagine you are passing by a tree and that someone there tells you that the tree spoke a few minutes ago. You would immediately conclude that he was unbalanced and even if ten people tell you the same, you would judge them insane. But if a thousand people say the same, you would start to think they were apparently mistaken and if 100,000 insist on it, you must consider that a tree could talk. This means, then, that it was never clear to you that trees can’t speak!
A Fair Trial
This is a warning to the beis din to refrain from hearing one litigant without the presence of the other.
Rabbi A.L. HaLevi Horvitz, author of Rashei Besamim, was required to judge the validity of a beis din that had heard one litigant without the presence of the other and he cited the example of Tzelofchad’s daughters: “And they stood before Moshe and before Elozar the Kohen and before the heads of the tribes and the whole congregation” (Bemidbar 27:2). Why must we know that they stood before the whole congregation? The Torah wants to emphasize that the potential litigants, the tribe of Menasheh, were also present, for if not so, Moshe would not have listened to Tzelofchad’s daughters (Kemotzei Shalal Rav, Parashas Pinchas).
HALACHAH ON THE DAF
Being a Dayan
The Gemora discusses the responsibilities of a dayan (judge). The Shulchan Aruch (Choshen Mishpat 10:1) exhorts a dayan to be patient when judging what the halachah is, and not to answer flippantly. A dayan should make 100 percent sure in his mind that this is indeed the halachah before paskening, and a dayan that doesn’t do so is labeled a shoteh, rasha and a haughty person.
Similarly if a dayan compares the question that he is asked to another case, and doesn’t ask a Torah scholar who is greater than him for his opinion, he too is categorized as a rasha that is a haughty person.
The Torah does not look favorably on a Torah scholar who is not on the level of being a dayan, and yet judges cases. Nor does it appreciate a scholar of high caliber who abstains from becoming a dayan. However, if he abstains due to the fact that there is another dayan in town, then he is to be commended.
A dayan should always try to make a compromise rather than to judge the case, even if he is one hundred percent sure of the halachah.
A dayan has an obligation to treat each case brought before him, even if it involves a negligible amount of money, with his full attention and seriousness.
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The Seder Hadoros (erech: Rav Shmuel bar Marsa) writes that he is uncertain if the name Marsa is the name of a man or the name of a woman.
In the Teshuvos Hageonim it is written: You asked regarding Yoav ben Tzeruyah – why was he called by the name of his mother? And what was his father’s name? His father’s name is known, for it is written (Divrei Hayamim I: 4, 14): and Serayah begot Yoav, the leader of Gei Harashim. And since his mother (Tzeruyah) was the sister of King David, he was called after her name.
This also explains why Rabbi Shimon ben Pazi was called after his mother’s name, for she was the daughter of Rabbi Chiya, as we learned in Yevamos (65b).
Rabbah bar Chanah as well can be explained in this manner, for Chanah was the sister of Rabbi Chiya.
Rav Yitzchak bar Shmuel bar Marsa is also explained in this manner, for Marsa was the sister of Rabbi Chiya, as it was taught in Sanhedrin (5a) that Aivu (Rav’s father), Chanah (Rabbah’s father), Shila, Marsa and Rabbi Chiya were all the children of Abba bar Acha Karsela of Kafri.
In other Teshuvos Hageonim, it is stated like that as well that Marsa was the mother of Shmuel and the sister of Rabbi Chiya.
Rabbeinu Gershom in Bava Basra
(52a) writes that Marsa is a woman’s name.
The Rashbam learns that Marsa is the name of a scholar, the brother of Rabbi Chiya.
Seder Hadoros cites a Zohar that Pazi was the father of Rabbi Shimon ben Pazi, not his mother.
“The scepter will not be removed from Yehudah” (Bereishis 49:10).
The Continuation of Jewish Sovereignty in Exile
By: Meoros HaDaf HaYomi
Our Gemora explains that the leaders of the Jewish exile in Babylonia, descended from the tribe of Yehudah, derived their might from Yaakov’s blessing: The scepter will not be removed from Yehudah.
Rambam adds that “the leaders of the Babylonian exile take the place of our kings and should rule the Jews everywhere and judge them, whether willingly obeyed or not, as we have been told: The scepter will not be removed from Yehudah; these are the leaders of the Babylonian exile (Hilchos Sanhedrin, 4:13).
The description of Yehudah as a “law-giver” later in the same verse is expressed by the fact that the Nesiim of Eretz Yisroel were descended from Yehudah.
Yaakov’s prophecy served as a weapon for anti-Semitic Christians for many centuries as they tried to point out “inexactitudes” in the Torah and public debates with the Christians featured the repeated question that, after all, the Torah promises eternal sovereignty to Yehudah’s descendants. “Where is Yehudah’s sovereignty and kingdom?”
Addressing this question, Ramban (on Bereishis 49:10) quotes the verse in Devarim 28:36: Hashem will lead you and your king, whom you will appoint over you, to a people unknown by you and your fathers. The Torah itself, he asserts, does not exclude the possibility that Yehudah’s sovereignty will be interrupted. “The scepter will not be removed from Yehudah” therefore means that as long as there is a Jewish kingdom, kings must be appointed only from Yehudah’s descendents, but there is no promise for a continuous monarchy. Indeed, those who ignored this commandment and crowned kings not descended from Yehudah were harshly punished. “And this,” writes Ramban, “was the punishment of the Hasmoneans, who reigned in the era of the Second Temple. They were exceedingly pious and if not for them, the Torah and mitzvos would have been forgotten by the Jews but still they were severely punished…because they reigned without being descended from Yehudah and David and removed the scepter completely. And their punishment was measure for measure, as Hashem set up their slaves over them and they eradicated them.”
The Rashba also addresses this question: “I have seen fit to record in a book my argument with one of their learned men in those matters” (Responsa Rashba, IV, 187). In his opinion, though, the verse promises that Yehudah will reign eternally, we should regard the interruptions of our exile or the reign of kings not descended from Yehudah as merely temporary as, after all, the verse concludes: “till Shiloh (the Mashiach) comes and he will gather the peoples.” In other words, Mashiach, descended from Yehudah, will finally arrive and restore the monarchy to the tribe of Yehudah.
HALACHAH ON THE DAF
Ruling in the Presence of one’s Teacher
A disciple should not issue a halachic ruling in the presence of his teacher. This is one of the many halachos that pertain to a talmid (disciple) in regard to his Rebbi muvhak (a teacher that taught him a majority of his Torah knowledge), due to the fact that he is obligated to revere him. A talmid that does issue a halachic ruling in the presence of his teacher is liable to death.
Tosfos points out that a talmid may not rule within three parsaos of his teacher, even if his teacher gave him permission to do so. A talmid that is out of the range of three parsaos may only rule in an unofficial manner, but to establish himself as a judge, he will not be permitted until his teacher gave him permission to do so, or when his teacher dies. (Yoreh De’ah 242:4)
Rif and Rambam explain that if the talmid is a talmid chaver - a student that did not learn most of his Torah knowledge from this teacher (Rambam’s definition), then he may rule even within three parsaos. Rama cites an opinion that even a talmid chaver cannot rule in the immediate vicinity of his teacher (ibid).
What exactly constitutes that a talmid has ruled?
1) Only if an actual issue came up, but if he was merely asked his opinion on a hypothetical case then he is permitted to reply (ibid 242:7).
2) Only when asked a question that is a novel halachah to the person who asked the question, but if it’s a common halachah that everyone knows about (i.e. he knows that such a concept exists, but he doesn’t know the ruling in his case), then the talmid may answer (ibid 242:8).
A talmid may rule even in front of his teacher that something is forbidden in order to stop a person from committing a transgression, since we do not give respect to a teacher when a desecration of Hashem’s Name is at stake (ibid 242:11).
A talmid that did not yet reach the level of Torah that enables him to rule and does so, is called a host of harsh names, among them shoteh and rasha (ibid 242:13).
A judge that drank wine may not issue rulings, unless the question is something that is explicitly written in the Torah, for example that blood may not be eaten (ibid). Once he is certain that the wine has left him then he may rule once again (Shach). Similarly if he is distressed, he may not rule (Bach).
By: Rabbi Avrohom Adler
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Rav Yitzchak bar Yosef said in the name of Rabbi Yochanan: Rebbe, Rabbi Yehudah ben Roeitz, Beis Shammai, Rabbi Shimon and Rabbi Akiva all hold that the way a word is pronounced is determinant in Biblical exposition (yeish eim lamikra).
The Rif was questioned as to why the Gemora uses the word eim, which means mother, and not av, which means father. A similar question would be that the Gemora refers to one of the thirteen principles of Biblical hermeneutics as a binyan av and not a binyan eim.
The Rif initially responded that he never heard anyone shed light on this matter, but then he proceeded to offer a possible explanation. When the purpose of a principle is to teach a concept in a different area, the Gemora uses the term av, whereas if the discussion at hand is regarding relying on a principle, the Gemora uses the word eim.
Shearim Mitzuyanim B’Halacha explains the words of the Rif. The mother is the akeres habayis, the mainstay of the house as it is said every honorable princess dwelling within. For this reason we say yeish eim lemikra or yeish eim lemasores, as the mother is the central figure in the house and it is the mother who everyone is dependant upon. The father, on the other hand, is not usually found in the house, as he leaves the house to seek a livelihood. The principle of a binyan av, however, is that we are building from one location to another, and this is analogous to a father who influences others. (See Rabbeinu Bachye to Devarim 33:8 for further discussion on the differences between the father and mother.)
By: Rabbi Avrohom Adler
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The Gemora cited a dispute regarding the half damages that one is required to pay if his ox gores for the first time.
The Gemora in Bava Kamma (15s) explains: Concerning the payment of half damages (which are paid when a tame ox gores another animal; if the ox did not gore three times, it is regarded as an abnormal act and the animal was not intending to inflict damage; this is called a tam), Rav Papa says: This is regarded as a compensation payment. Rav Huna the son of Rabbi Yehoshua says: The half damages are considered a fine.
The Gemora explains: Rav Papa says that the half damages are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation). Rav Huna the son of Rabbi Yehoshua says that the half damages are considered a fine, for an ordinary ox is considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be exempt completely from paying for its damages. The Torah penalized him and ruled that he is required to pay half in order that he will watch his ox better in the future (hence the half damages are considered a fine).
Reb Dovid Pervarsky writes that this is not a factual dispute if ordinary oxen are accustomed to gore or not. Rather, the argument can be explained as follows: Rav Papa maintains that it is inherent in the nature of an ox to gore. Sometimes it will not gore because it does not feel the desire to gore at that time. When the animal does gore, it is not considered an abnormality at all. Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; when it does gore, it is regarded as an abnormality.
Reb Dovid is not comfortable with this explanation of the argument, for the Gemora’s language is that an ordinary ox is not considered guarded; if the animal is not goring (for whatever reason), it should be considered “guarded”!?
He therefore concludes that this is the explanation: Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; if it does gore, it cannot be labeled as a “damager,” since the ox was considered guarded. Rav Papa, however, maintains that it is in the nature of an ox to gore, and when it gores, it can be labeled a “damager.” This is what obligates the owner to watch his animal even though it is not accustomed to goring.
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By: Meoros HaDaf HaYomi
Should a get be delivered only before a beis din?
This week the Daf HaYomi learners have concluded Bava Basra and started tractate Sanhedrin and we take this opportunity to address an important topic connected with the beginning of Sanhedrin and the end of Bava Basra.
One of the striking subjects we most perceive as needing a beis din is divorce but, to our surprise, not all halachic authorities accept this assumption. The first posek to devote a broad discussion to this basic question was the Chief Rabbi of Prague, HaGaon Rav Yechezkel Landau, famed as the author of Responsa Noda’ BiYehudah (2nd edition, E.H. 114). The gaon was asked to judge the validity of a bill of divorce (get) arranged by a certain rabbi who had enlisted his son-in-law and another person to form a beis din. As the rabbi and his son-in-law were relatives, the group of three cannot be defined as a beis din and the question remains if the get is valid though not having been delivered in the presence of a beis din. The poskim point out that the Talmud never indicates that a divorce should be enacted only in a beis din but the Or Zarua’ (cited in Terumas HaDeshen, I, 248) states that a beis din is required, and later halachic authorities began to search the Talmud for proof for either opinion.
Bava Basra (174b) quotes Abayei’s question to Rava – “Indeed, does everyone divorce in a beis din?” – giving us to understand that there is no need for a beis din. Still, Rabeinu Gershom’s commentary, printed alongside the Gemora, offers a different text – “Indeed, does everyone divorce in a reputable beis din? One can divorce in an ordinary beis din” – and according to this version, every get must be delivered in a beis din. On the other hand, the Gemora in Bava Basra 176a rules that a get without the signatures of witnesses is valid as long as the wife received it in the presence of witnesses. Apparently, though, asserts the Noda’ BiYehudah, if a get must be delivered in a beis din, why does the Gemora omit that important detail? We must assume, then, that there is no need for a beis din.
The Noda’ BiYehudah proves, however, that a beis din is required from Rashi’s commentary at the beginning of Sanhedrin. Our Mishna lists the procedures that become valid only if performed before a beis din, such as financial or property decisions, chalitzah or mi’un (the refusal of a girl under bas mitzvah age to stay with her husband). Rashi explains the need for a beis din in the case of mi’un as “everything that the chachamim instituted (i.e., all regulations derabanan) they instituted in a form approximating that required by the Torah.” In other words, the regulation derabanan, that a girl under bas mitzvah age married off by her brother may object to the marriage and leave her husband, is performed without a get, but as mi’un resembles divorce, it must be performed before a beis din. The Noda’ BiYehudah therefore deducts that a get must surely be delivered in the presence of a beis din (see Responsa Beis HaLevi, end of Part I; Maharam Schiff, Rashash and Hagahos Rav Y.A. Chaver at the end of the Shas; and Hagahos Chasam Sofer on Noda BiYehudah, at the end of the book, who explains that Rashi intended to compare mi’un only to chalitzah, which requires a beis din).
However, some poskim try to prove the opposite from our Mishna. The Mishna, after all, lists all the procedures requiring a beis din without including divorce. Still, the Noda’ BiYehudah rejects this proof as the need for a beis din in divorce cases is based on the financial and property aspects of divorce and our Mishna states explicitly that “financial cases are judged by a beis din of three.” Referring to the specific question of the rabbi and his son-in-law, he ruled that the divorce should be performed again before a valid beis din because of the various halachic authorities requiring a beis din. Most Acharonim, however, believe that a couple is considered divorced even if the procedure was not enacted before a beis din (see a lengthy discussion of the topic in Pischei Teshuvah, 154; Seder HaGet, S.K. 8; and Sedei Chemed, Ma’areches Get, 1).
The Original City Limits of Yerushalayim
No additions should be made to Yerushalayim or the courtyards of the Temple unless approved by a beis din of seventy-one.
As we all know, Eretz Yisroel has a special sanctity and the observation of many commandments depends on one’s being there. Yerushalayim was even more sanctified for certain mitzvos decreed by the Torah to be performed in the vicinity of the Temple, such as eating ma’aser sheni, and our Mishna explains that only a beis din of seventy-one – the Great Sanhedrin – can annex and sanctify more territory to the original area of Yerushalayim. The Mishna in Shevuos (14a) adds that the Sanhedrin also requires the consent of the king, a prophet and the Urim VeTumim on the breastplate of the Kohen Gadol. According to our known historical sources, the area of the original city of Yerushalayim was enlarged only once and in the opinion of certain researchers, including HaGaon Rav Yechiel Michel Tikotchinski zt”l, this was accomplished during the reign of King Chizkiyahu (‘Ir HaKodesh VeHaMikdash, II, Ch. 5).
The Tosefta to Sanhedrin (3:4) cites Aba Shaul, that “there were two pools in Yerushalayim: the lower and the upper; the lower pool was sanctified with all these requisites but the upper pool was sanctified only with the arrival of the exiles (in Ezra’s era) without a king and without the Urim VeTumim.” (A “pool” obviously means the environs around the pool). Many researchers, Jewish and non-Jewish, have pondered the location of the Lower Pool both from the halachic and -lehavdil- the historical/archaeological viewpoints. As for the halachah, it is vital to know the boundaries of sanctified Yerushalayim as even today there are several halachos that apply only within its limits, such as the following:
i) Ma’aser sheni must not be redeemed – i.e., exchanged for money or other produce – in sanctified Yerushalayim.
ii) Human bones are not to be moved through sanctified Yerushalayim (Rambam, Hilchos Beis HaBechirah, 7:14, based on Avos deRabbi Nasan, Ch. 38).
iii) It is forbidden to bury the dead in Yerushalayim (Rambam, ibid, based on Avos deRabbi Nasan, ibid). Some poskim hold that this halachah still applies (‘Ir HaKodesh VeHaMikdash, III, Ch. 13 – in disagreement with Pe’as HaShulchan, 23 – see his discussion of the graves of the Sambuski family on the southeastern slope of Mount Zion).
iv) Bodies of the deceased must not stay in Yerushalayim overnight (Bava Kama 82b) – a halachah in practice today (Pe’as HaShulchan, Ch. 3, S.K. 23; ‘Ir HaKodesh VeHaMikdash, III, Ch. 14 – in disagreement with the Responsa Radbaz, II, 633).
We have no solid information on the original boundaries of Yerushalayim. Most of the present wall was built by the Turks and researchers rely on archaeological digs revealing older walls. The age of those walls is determined according to the artifacts found near them or by the approximate antiquity of their stones. It is only natural, then, that many opinions have been expressed but in our limited framework we shall focus on that of Rav Tikotchinski in his ‘Ir HaKodesh VeHaMikdash.
The “Old City” is not that old: All researchers agree that the area originally sanctified and walled by King David and King Shlomo (Melachim I, 9:15; Divrei HaYamim I, 11) is not contiguous with the area now called the “Old City.” The latter includes the Temple Mount and territory to the north whereas King David’s city was built to the south. A large area south of the present wall, therefore, bears the original sanctity of Yerushalayim. Between 5654-57 researchers discovered a wall far from the present one, judged to have been built in the era of the First Temple. If this estimate is correct, the pools of Shiloach and El Khamrah and the streets called Maalot Ir David, Wadi Khilwah, Malkitzedek and Ma’aleh HaShalom are within the borders of sanctified Yerushalayim. Another wall was found 16 meters east of the Old City and some therefore believe that the city’s original sanctity extends that far to the east.
Where, though, is the Lower Pool annexed to Yerushalayim by King Chizkiyahu? Rav Tikotchinski maintains that it is somewhere north of the Temple but south of the present northern wall and, in his opinion, all of the Old City bears the original sanctity of Yerushalayim. Others, however, disagree because of the presence of a few graves in the Old City from the Second Temple era discovered after Rav Tikotchinski’s demise. As it is forbidden to bury the dead in Yerushalayim, the entire Old City cannot be included in the originally sanctified area though there is the possibility that the graves were dug in opposition to the halachah (see Entziklopedia Talmudis, Vol. 25, Appendix to the article on Yerushalayim, column 707, footnotes 32 and 106). All this pertains to the sanctity of Yerushalayim as decreed by the Torah but according to the Maharit (II, Y.D. 37), we should extend its sanctity by rabbinical decree to include the Upper Pool, added to Yerushalayim without the Urim VeTumim. In his opinion, then, the sanctity of Yerushalayim stretches out to the Third Wall, near the Mandelbaum Gate west of the Old City, to the valley known as Jurat-il-Anab.
The Mi’un of Sulka, the Sister-in-law of Rabbi Yaakov Polak
Chalitzah and mi’un are performed in a beis din of three.
Our sages instituted a regulation whereby a girl whose father had died could be wed in certain circumstances, though still under bas mitzvah age (see Tur Shulchan ‘Aruch, E.H. 155). Such a girl may refuse to stay with her husband as long as she has not attained bas mitzvah age. Her marriage becomes void with no need for a get and our Mishna asserts that she must declare her mi’un (“refusal”) before a beis din of three. Mi’un occupies many sugyos throughout the Talmud and a chapter of 22 paragraphs in Shulchan ‘Aruch (E.H. 155).
In our era the custom to marry off young girls has ceased except in Yemen, where it persisted to save them from certain decrees. One the other hand, till 500 years ago poskim discussed questions involving such marriages and, first and foremost, mi’un. Six hundred years ago there was a posek in Germany called Rabbi Menachem of Miersburg, author of Me’il Tzedek and sometimes known as Rabbi Menachem HaMeili for his masterwork. Accoding to HaGaon Rav Shlomo Luria (Yam shel Shlomo, Yevamos, ch. 13, #17), “he instituted several regulations to protect the Torah and was a great expert and his regulations and decrees were accepted throughout Ashkenaz (Germany and the neighboring lands).” One of his decrees did away with mi’un and required any wife to leave her husband only with a get in order to prevent people from saying that couples could part without a get, eventually leading to some disregard for the mitzvah. In addition, there was the suspicion that a girl would declare mi’un in the presence of unlearned persons who would not ascertain that she was still a minor, not requiring a get.
Five hundred and ten years ago, in 5252, an orphaned girl by the name of Sulka was married off by her mother and brother to a Torah scholar, Rabbi David Tzenner. After a while, and still being under bas mitzvah age, she expressed the wish to leave him and since her husband refused to divorce her with a get, her relatives instructed her in the procedure of mi’un and she performed that requirement. Her sister’s husband was Rabbi Yaakov Polak, the founder of the pilpul method of Talmudic study, one of the leading Torah scholars of that generation and a rosh yeshivah in Prague, where he taught thousands of students. He agreed to the mi’un and allowed Sulka to remarry without a get.
Many leading halachic authorities vehemently objected to Rabbi Polak’s decision, including one of his teachers – HaGaon Rav Y. Margalios, author of Seder HaGet – and MaharY Mintz (Responsa, §13) who insisted that the procedure of mi’un should be discarded according to the regulation of Rabbi Menachem of Miersburg. They forbade Sulka to remarry without a get and even imposed excommunication (niduy) on anyone opposing their decision. Still, Rabbi Polak ignored their ruling, proved that the regulation against mi’un had not been accepted and that mi’un had been in practice since the era of Rabbi Menachem of Miersburg and married off Sulka without requiring her to receive a get. Rabbi Polak left Prague as a result of the stormy altercation and settled in Krakow, where he stayed for 35 years and established a large yeshivah which contributed greatly to turning Poland into the most important center for Torah study in Europe for hundreds of years.
How was the halachah eventually decided regarding mi’un? Maharshal (Yam shel Shlomo, ibid) offers a short description of the above event, which occurred in the previous generation, and relates that according to his knowledge, Sulka’s second marriage failed due to the annoyance of the leading Torah authorities. He holds that mi’un must no longer be performed and if enacted, the girl must not remarry without a get unless instructed otherwise by a beis din and even so, such a beis din should be thereafter discredited.
There is no “custom” regarding a rare occurrence: On the other hand, the Remo was a student of the disciples of Rabbi Polak and devotes a brief discussion to mi’un at the end of the relevant chapter in Shulchan ‘Aruch (E.H. 155). In his opinion, mi’un may be practiced even now, “as performed by Rabbi Yaakov Polak z”l in his era.” Rabbi Shneiur Zalman of Liadi, author of Tanya, explains the Remo’s reason in the responsa at the end of his Shulchan ‘Aruch (§22, based on Rambam). We cannot, he asserts, speak of an established custom regarding instances which occur only rarely, especially where an attempted regulation commands us to refrain from performing a previously accepted procedure (see ibid). We cannot claim, then, that there was a “custom” to refrain from mi’un (see Pischei Teshuvah and ‘Aroch HaShulchan, ibid). The ‘Aroch HaShulchan has doubts about the Remo’s ruling and concludes “when I was young I heard that in the previous generation there had been a mi’un and that the leading Torah authorities objected vigorously but I don‟t know how the matter ended; in our era we have never heard of any mi’un at all.”
By: Meoros HaDaf HaYomi
The Forgers’ Scheme
A person who wants to show a specimen of his signature to a Beis Din should not sign at the bottom of a blank page. A few years ago the Torah community in Yerushalayim was outraged when a claim was presented to a Beis Din against a respected Torah scholar. The claimant produced a promissory note for a huge amount signed by the supposed debtor and the latter certified his signature but denied borrowing the money. The dayanim appointed a special investigative team who revealed that the claimant belonged to a group of swindlers who had managed to misuse the defendant’s signature. They had discovered that he was accustomed to sign his name in the middle of the front page of every book in his large library and all they had to do was just borrow one of his books, remove the blank page and compose a promissory note above the signature.
Indeed, in our sugya Abaye recommends that anyone required to demonstrate his signature should do so at the top of a page to prevent anyone from adding a fraudulent text above it. Commenting on our sugya, the Ritva clarifies that Abaye’s warning stems from an understanding of people and foreseeing their spontaneous reaction at unexpected times. Abaye’s suspicion, after all, is actually unfounded as a person may claim he has paid a debt, even if a signed promissory note is produced against him, and he is believed unless the note is signed by witnesses. The Ritva explains, though, that Abaye foresaw a typical person’s behavior: By the nature of things, when someone is faced with a false document, his spontaneous reaction is to deny there having been any loan and subsequently he is not believed to assert that he paid the debt. The best thing to do, then, is to prevent any untoward use of one’s signature (Bava Basra 6a, Kesubos 88a, and see Shulchan „Aruch, C.M. 69:2, and the Shach, ibid, S.K. 10).
A claim based on a promissory note with no indicated amount: HaGaon Rav Mordechai Yafeh, author of the Levushim, cites an unusual event in his Levush Ir Shushan (section 48). About 420 years ago a person claimed to a Beis Din that another owed him a certain sum and, as proof, presented a blank promissory note signed by the supposed debtor, with no indicated amount. “The debtor,” he asserted, “gave me this note because he trusted me to fill in the amount he owes me.” The claimant added that were he a liar, he could have written in any sum he wanted and therefore the Beis Din should believe his demand. Still, the “Levush” immediately rejected the claim as “even a fool” would never give another a signed blank promissory note and we must assume that the defendant had lost the note, which was later found by the claimant. Concluding with a sharp warning, he declares that anyone giving another such a blank note is “merely a witless person willing to believe anyone, or insane and defined as a shotah, whose actions have no validity.”
Claiming money with a blank check: Nonetheless, the situation is different today and the above topic is relevant as people do give others signed checks with no specified amount, such as when paying a sum to be determined according to the future rate of exchange of some foreign currency. The practice is most common when borrowing from a free loan fund if the loan is repaid in installments and linked to a foreign currency. Moreover, most Gemachim lending medical apparatus or other equipment require a blank signed check. Indeed, what is the halachic validity of a monetary claim based on a signed check lacking any indicated amount?
Halachic authorities assert that if people are accustomed to give others such “open” checks, the holder of the check is believed to demand any amount. This regulation is also supported by Paragraph 19a of the national ordinance for promissory notes, which states that if a note lacks an essential detail, the holder may fill in the detail as he wishes. It follows, then, that the holder is believed to present a claim against the signer of a check missing a specified amount (see Mishpatecha LeYa‟akov, I, 22:6).
Who should Pay
for a Clock for the Teacher?
Our Mishna states the regulation that the person benefiting from a document must defray the costs of its being written. A borrower pays the expenses of drawing up a promissory note as he benefits from the loan and a purchaser defrays the costs of a bill of sale or deed, which is delivered to him as proof of his purchase and protects his rights. The author of Meshech Chochmah (at the end of Parashas Behar) supports this halachah with a passage from Yirmiyahu (32:10), recounting that the prophet bought a field from his cousin Chanamel ben Shalum, attesting “And I wrote the document and signed” even though the seller is generally assumed to write the bill of sale. The verse indicates, then, that Yirmiyahu paid the scribe, as stated in our Mishna.
An obligation to contribute to charity used as bail: The scope of the above halachah is seen from a question asked of the Rosh by his son Rabbi Yechiel. A certain Beis Din suspected that Shimon would not appear for a Din Torah scheduled for a particular time and commanded him to submit a guarantee. Shimon’s friend then signed a document before the Beis Din that if Shimon failed to appear as demanded, he would donate 1,000 coins to charity. The question arose, though, as to who should pay the costs of writing the document: Shimon, his litigant, or the guarantor. At first, the Rosh ruled that Shimon’s litigant must pay as the guarantee is to his benefit. He later discovered, though, that there was no other litigant but that “Shimon had sinned and the community wanted to imprison him till his punishment will be decided.” The Rosh then changed his decision and ruled that Shimon, as the one benefiting from the guarantee, must pay the price of the writing (Responsa of the Rosh, Kelal 13:2-3).
About 500 years ago an argument arose between a teacher and a certain pupil’s parent. The teacher was hired to instruct the child for a few hours each day and needed a clock in the room to know when the session ended (pocket watches had not yet been invented). The father claimed that the teacher must pay for the clock but the teacher insisted that the father bear the expense. Rabbi Yisrael Isserlin, author of Terumas HaDeshen, ruled that the father should buy the clock, but his student, Rabbi Yisrael bar Rav Chayim of Bruna, questioned the decision: Apparently, just as one who hires a tailor to sew a garment need not buy him a needle, and just as one who hires a scribe need not provide him with a pen as all artisans are hired with their tools, the teacher should pay for the clock required for his work.
The difference between teachers and tailors: Rav Yisrael of Bruna clarified his mentor’s ruling by explaining the difference between a teache r’s clock and a tailo r’s needle. A tailor without a needle is no tailor and a penless scribe is no scribe, as they cannot practice their trades without such tools. A teacher needs no clock for his work, as he only requires the ability to speak and explain. A clock is merely meant to tell him when to finish his task. We cannot force him to pay for it as he can claim that he can estimate the elapse of time without it. If the father refuses to believe him, says Rav Yisrael of Bruna, “Buy a clock and I’ll teach by it.”
The Collection of Legal Costs
In civil courts the losing party is charged for legal expenses, generally including the court costs and the winning party’s lawye r’s fees, etc. How does the Torah view such costs and how does a Beis Din act according to halachah?
Our sugya explains that the secretaries of a Beis Din would record the litigants’ claims, as Rashbam comments, “so that they would not change their claims” (s.v. Shitrei ta’anta) and our Mishna rules that the expenses involved in writing the records must be shared equally by both litigants. The Ribash deducts from there (Responsa, 222) that the general costs of a Beis Din should also be equally shared by the litigants rather than be borne exclusively by the losing party. Both the claimant and defendant need the services of the Beis Din and should divide the expenses entailed by their case.
An uncooperative defendant pays the extra costs he causes: Still, the Ribash emphasizes that if the defendant is uncooperative and causes the claimant to suffer needless expenses, such as the issuance of a “notice of refusal” (kesav seiruv), he is regarded as guilty of causing damage by negligence and must defray such expenses. Moreover, if the Beis Din discovers that a claim is baseless and only intended to hassle the defendant, the latter is exempt from all court costs and they are then borne exclusively by the claimant (Yeshuos Yisrael by the Gaon of Kutna, C.M. 14, in Ein Mishpat, s.k.14). Nonetheless, we have yet to clarify if in such cases a defendant may also demand the claimant to defray his own costs, such as payment to a rabbinical court advocate (to’en rabani) or the like. Halachic authorities indicate that the claimant should not be so charged as such expenses are not unavoidable and a defendant may represent himself. Hiring a to’en rabani is optional and the costs involved are not considered damage caused by the claimant.
A practical implication of the above discussion is that if a Beis Din allows a person to present a claim at a civil court and he wins his case, resulting in the defendant’s obligation to pay for the claimant’s lawyer, then the claimant must return to Beis Din to ask whether he may collect that sum from the defendant.
The Tree That Wasn’t
HaGaon Rav Aharon Kotler zt”l, Rosh Yeshivah of Lakewood, was known to be extremely heedful to guard the truth. Once he was shown an advertisement with a sketch of the Yeshivah including the surrounding trees. He counted the trees, though, and found that three had been drawn instead of the actual two and not wanting to lend a hand to the misrepresentation, banned the picture. “It’s a falsification,” he said, “and the Torah is a Torah of truth and any method to maintain it must rely on the strict truth.”
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Minimum Number of Coins of Different Denominations
The braisa teaches that when a shtar mentions that a person borrowed “gold dinarin” but it does not mention the number of dinarin, the creditor may claim only two gold dinarin, since the minimum possible amount to which the plural “dinarin” refers is two — “mi’ut rabim shenayim.” The braisa earlier (165b) teaches the same with regard to a shtar that says “silver dinarin.” Similarly, the Mishna (165b) states that when a shtar mentions that a person borrowed “zuzim,” “sela’im,” or “darkonos,” and the number of those coins was erased, the creditor may claim only two, which is the minimum possible amount of the plural word used in the shtar.
Why does the Mishna and braisa need to repeat itself with regard to these different types of coins? The Mishna and braisa need only teach this in one case, and then we would know that whenever there is an unspecified amount of “coins” (in the plural) — regardless of what type of coin — the creditor may collect only two!?
The Penei Shlomo answers that the Mishna (and braisa) is teaching a novelty in each case. Since the subject of the shtar is coins, which are divisible entities, we might have thought that even though the word used is plural, it refers not to two coins but to one and a half coins. The Mishna is teaching that the creditor is entitled to more than one and a half coins — he is entitled to take two full coins of the specified denomination, because if it is true that the borrower only borrowed one and a half coins (such as a sela and half a sela), then the value of the half-coin would have been expressed in terms of a smaller denomination (a sela and two dinarin).
The Penei Shlomo adds that this is also why the Mishna and braisa use the phrase, “It is not less than two…,” instead of saying, “He may only collect two.” “It is not less than two” excludes a “lesser” amount, and implies that we might have thought that the creditor is only allowed to collect an amount which is less than two (such as one and a half). “He may only collect two” excludes a “greater” amount, and implies that we might have thought that the creditor should collect more than two. Since the Mishna is teaching that he “may” collect more than just one and a half, it says, “It is not less than two.”
The Mishna and braisa, therefore, needed to teach this novelty with regard to each denomination of coins, since we would not have been able to learn one from the other. People might write “one and a half zuzim” without expressing the fractional zuz in terms of a smaller denomination. Therefore, the Mishna must teach us in each case that the plural word is not less than two.
The Tiferes Yisroel explains that each case in the Mishna is necessary for the following reasons. In the case of “Kesef zuzim which are…,” where the number of zuzim was erased, we might have thought that the creditor is entitled to collect four zuzim, since the words “Kesef zuzim which are…” imply that the author of the shtar is defining an equal value for “Kesef zuzim.” The lowest number of zuzim which are equivalent to a different coin is four, and the shtar originally said, “Kesef zuzim which are one sela.” Therefore, the Mishna needs to teach us that the creditor may only collect two zuzim, because perhaps the author of the shtar was giving a number of zuzim, and not an equivalent value in another denomination.
In the case of “Kesef sela’im which are…,” where the number of sela’im was erased, we might have thought that the author of the shtar was referring to two “inferior” sela’im (as mentioned earlier in the Mishna), which are equal to seven zuzim (or 6 2/3 zuzim), and not 8 zuzim, and the shtar originally read, “Kesef sela’im which are seven zuzim.” Therefore, the Mishna teaches that the creditor may collect two standard sela’im and not inferior ones.
In the case of “Kesef darkonos which are…,” where the number of darkonos was erased, we might have thought that certainly the author of the shtar was referring to inferior darkonos, for the following reason. A darkon is a large, valuable gold coin, and people do not usually pay back debts with such coins. Accordingly, we might have thought that the author of the shtar meant inferior gold darkonos, and that is why he was writing the actual value of the darkonos, which was “less” than the value of two standard darkonos. Therefore, the Mishna needs to teach us that the creditor is indeed entitled to collect two normal darkonos and not inferior ones.
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By: Meoros HaDaf HaYomi
Dear Customer, Please Note: This Book is not Proofread at all
Rav Yehudah asserts in the name of Rav that most people are guilty of some sort of thievery and, as Rashbam explains (s.v. Rov begezel), this means that most people transacting business allow themselves to deny others their due profit. In other words, fraud, false pretenses and financial conniving are considered gezel.
In his Sefas Tamim (Ch. 3), Rabeinu Yisrael Meir HaKohen zt”l, the Chafetz Chaim, proves that even one who causes his fellow a loss is considered a thief. True to his word, he was renowned for his extreme avoidance of anything resembling falsification or thievery, as evident from his behavior concerning the books he authored.
The Chafetz Chaim was in Warsaw when he first had his Mishnah Berurah printed and every day he would come to the printer to check that no smudged or otherwise defective pages were being sent out for sale. He left his learning for several months for this purpose and afterwards relied on his son to undertake the task. When he discovered that despite his great care, one of his books had been sold with a few defective pages, he hurried a sharp letter to his son, saying “What have you done to me, my son? All my life I’ve taken care to avoid anything resembling thievery but I never thought that I would err in outright robbery and because of you this has happened!” The Chafetz Chaim immediately ordered the printer to reprint those pages found defective and publicize in the press that anyone who had bought a defective edition should inform him of such in order to receive the corrected pages by post (Michtevei HeChafetz Chaim, p. 30).
The Chafetz Chaim knew no rest till he hired special proofreaders to examine each page of his printed books and, if approved, to mark the front page of each book as “proofread” (HeChafetz Chaim Ufo‟olav, I, Ch. 32). Some of these books are still extant.
The problem of printing errors also concerned other halachic authorities. For example, the students of the Tsadik HaGaon Rav Eliahu Lopian zt”l, led by the famed Yerushalmi Magid Rabbi Shalom Schwadron zt”l, published the popular Lev Eliahu with a warning on the front page: “Dear purchaser: This book is not proofread and I assume no responsibility – The Publisher.” We have no knowledge of the severity of the printing error discovered by the Chafetz Chaim but HaGaon Rav Yaakov Kanievski zt”l, the Steipler, states in a letter that the sale of a book containing minor errors that still allow readers to understand the text is not considered gezel. After all, anyone buying a book knows that the task of printing is complicated and hardly ever free of mistakes. In his opinion, a book with no pages missing may be sold even with some defects and therefore, when he found that the last letters on a page were omitted in an entire edition of his Kehilos Yaakov, he continued to sell that edition as the defect did not prevent understanding the text (Karyana D’igarta, I, p. 351). Of course, this principle applies only to publishers of new books but one is not permitted to sell defective sidurim, as finely proofread sidurim are available on the market and they are expected to be free of errors.
All the above is just a fraction of the material pertaining to this broad topic. The Gemora in Brachos (6a) explains that one who fails to respond to a greeting is called a robber, indicating that depriving a person even of his due word is defined as gezel (Sefer “Mamon Kasher”).
Once, Rabbi Elazar Shulevitz zt”l, Rosh Yeshivah of Lomzha, was standing praying Shemoneh Esreh at the entrance to a synagogue and Rabbi Yisrael Salanter, standing near him, approached him and whispered, “Robber! The synagogue is packed full and you’re robbing the congregation of air!” Rabbi Shulevitz immediately interrupted his prayer to move away (Lev Eliahu, Bereishis). Similarly, though in an opposite circumstance, the Vilna Gaon zt”l would take care to shut the door to the bathhouse immediately after entering lest he rob the bathers of the warm air inside (Tosefes Maaseh Rav, S.K. 29). According to the Chafetz Chaim, even someone who participates in a wedding or sheva berachos meal without enhancing the joy of the chassan, about whom the Gemora in Berachos (ibid) states that he transgresses “five voices”, might be guilty of robbery (Michtevei HeChafetz Chaim, p. 46).
Why the Labor Cost More
A simple tailor became close to Rebbe Noach of Lechovitz and the Rebbe persuaded him to refrain from the custom then common among tailors to demand clients to bring them extra cloth in order to benefit from the quantity remaining after their work. “This custom is outright thievery,” explained the Rebbe, “You may charge more for your labor but you mustn’t practice that foul custom.”
“And what should I tell my customers,” questioned the tailor, “if they ask me why I charge more yet need less cloth?”
“Tell them,” replied the Rebbe, “that you learnt to cut in a new way that doesn’t need a lot of cloth but that learning the method cost a great deal.”
The tailor obeyed the Rebbe’s instructions but after a while his customers remarked that he had already covered the expenses of learning the new method and asked why he continued to charge more.
“The new method,” he answered, “is a whole system to be learnt again every day and every week” (Hizaharu Bemamon Chavreichem, p. 366).
The Old Man Fell Asleep on His Coat
On the night following the demise of HaGaon Rav Elchanan Wasserman’s wife, his son Rabbi Naftali sat down and wept incessantly while several yeshivah students slept in an adjacent room. Rav Wasserman approached his son and told him, “You shouldn’t cry so loudly now. The boys might wake up and you would rob them of their sleep” (Or Elchanan, I, p. 13).
A similar story is told of Rabbi Avraham of Purisov. Despite his known tendency to conceal his behavior, he once learnt all night in the beis midrash, later explaining that an old man had fallen asleep on the edge of his coat. “I couldn’t, after all, stand up for fear of waking him!” (Chasidim Mesaperim, I).
Another time Rabbi Shimon was sitting in Rebbe’s presence when he finished a section of the Book of Psalms (one of the five books that Tehillim is divided into). Rebbe said, “How neat is this writing!” Rabbi Shimon replied, “I did not write it; Yehudah Chayata wrote it.” Rebbe rebuked him by saying, “Stay away from this lashon hara.”
The Gemora asks: In the first case (by the tied document), one can understand Rebbe’s rebuke, since there was lashon hara involved; what lashon hara, however, was there in this case?
The Gemora answers: It is based upon the teaching of Rav Dimi, for Rav Dimi, the brother of Rav Safra, taught a braisa: A man should never speak in praise of his friend, because by mentioning his praise, he will come to mention his faults as well.
The Gemora in Gittin (67a) relates that Issi ben Yehudah used to specify the praiseworthy merits of the various Sages.
The Chidah challenges this from our Gemora, which rules that one should never speak in praise of his friend, because by mentioning his praise, he will come to mention his faults as well!?
He initially answers that Issi ben Yehudah specified their merits after their death; it would then be permitted, for there was no concern that he would talk about their faults after their deaths.
He retracts from this answer, for it is evident from the Avod d’Rabbi Nassan that Issi ben Yehudah spoke about their praises even during their lifetime!
It would seem that the Chidah’s question can be answered according to the words of the Rashbam here. He writes that a person should never speak excessively in praise of his friend, because by mentioning his praise, he will come to mention his faults as well. Apparently, it is only prohibited if one offers excessive praise; this will lead to the listener or the speaker interjecting that the person does possess some faults as well. Issi ben Yehudah, however, was not exaggerating at all when specifying the merits of those Sages.
The Maharsha challenges this explanation, for it does not seem from our Gemora that Rabbi Shimon was excessively praising Yehudah Chayata; he was merely stating that it was he who wrote that book of Tehillim, and that it was a neat handwriting.
The Rambam is of the opinion that this prohibition applies only in public, for there are bound to be enemies of the subject of the praise in the crowd, and they will almost certainly begin to talk disparagingly about him. In private, however, this prohibition would not apply.
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The Gemora states: Rav Amram said in the name of Rav that there are three transgressions from which no person is saved every day. They are: thoughts of sin, examining one’s prayers (Rashbam – feeling overconfident that his tefillah will be answered positively; Tosfos – lack of concentration during tefillah), and lashon hara. The Gemora explains that lashon hara refers to avak lashon hara (close to being lashon hara).
What does the Gemora mean that “no man is saved” from these transgressions? Certainly there are great Tzadikim and Talmidei Chachamim who — even if not entirely free of sin (see Koheles 7:20) — do not transgress all of these transgressions every single day! How can the Gemora say that “no person” is saved from these three transgressions every day?
In addition, if no one is saved from these three transgressions, then why are they transgressions? Hashem certainly would not give commandments that are impossible to keep.
The Iyun Yaakov explains that the Gemora means to say that because the temptation for these three transgressions is so great, no person is saved from these three transgressions without putting forth much effort. Someone who puts forth the effort to protect himself from these transgressions, though, will succeed and will not succumb.
The Toras Chaim, however, does not seem to agree with this explanation. He asks why the Gemora says that “no person is saved” from these three transgressions, instead of saying simply that “there are three transgressions which a person transgresses every day.” He answers that the Gemora is teaching that even one who attempts to avoid these transgressions will not be saved from transgressing them inadvertently, since the frequency of the challenge of these transgressions is so great.
How, though, does the Toras Chaim explain that there are Tzadikim who are able to avoid these transgressions?
The Maharsha explains that when the Gemora says that “no person is saved” from these three transgressions, it is referring to an ordinary person, but not to Tzadikim, who indeed are saved from these transgressions. He explains that while only a Jew, and not a gentile, is called “Adam” (Yevamos 61a), there is still a much higher level that a person can reach. The verse in Zecharyah (3:7) says that when a person follows the ways of Hashem, then “I will give you strides among these [Mal’achim] standing here.” Similarly, the Gemora in Chagigah (15b) explains that the verse, “The lips of the Kohen shall safeguard knowledge, and they shall seek Torah from his mount, because he is an agent (Mal’ach) of Hashem…” (Malachi 2:7), is teaching that when a Torah teacher is similar to an angel, then one should seek to learn Torah from him. This teaches that a person should strive to reach a level of absolute submission to Hashem, like the level of the angels.
When the Gemora here says that “no person (Adam) is saved” from these three transgressions, it is referring to a person who has not yet reached this level of perfection in his Avodas Hashem. The Maharsha explains that the word “Adam” is an acronym for the words, “Efer” (ashes, dust), “Dam” (blood), and “Marah” (bile), as the Gemora in Sotah (5a) says. An ordinary person, whose physical composition dominates his actions, is not able to prevent himself from transgressing these three transgressions. The fact that he is comprised of “Efer” negates his ability to activate his spiritual strengths in order to pray properly, and thus he sins with the transgression of iyun tefillah. The heat of the “Dam” within him causes him to lust for immoral pleasure, and thus he is not saved from thoughts of sin. His element of “Marah,” bile, creates in him the bitterness that causes him to have bad Middos and leads him to speaking lashon hara.
A person who conquers the lusts created by his physical composition overcomes the pull of those elements and rises above the status of “Adam” (“Efer, Dam, Marah”) and becomes comparable to an angel. Such a person certainly is able to avoid transgressing these transgressions.
The Gemora asks: And how much is the space that disqualifies a document?
Rav Yitzchak ben Elozar said: As much space as would be required for the writing of “lecha, lecha” above each other. [The “lamed” is a tall letter, and that should not touch the “end of chaf,” whose leg hangs low.] This indicates that he is of the opinion that the limit is two written lines and four blank spaces (for each of those words needs a blank space above for the “lamed” and a blank space below it for the “end of chaf”).
Rav Chiya bar Ammi said in the name of Ulla: As much space as would be required for the writing of a “lamed” on the top line and an “end of chaf” on the lower line. This indicates that he is of the opinion that the limit is two written lines and three blank spaces (for there is no “lamed” on the bottom line, and there is no “end of chaf” on the upper one).
Rabbi Avahu said: As much space as would be required for the writing of “Baruch ben Levi” on one line. Evidently he holds that the limit is one written line and two blank spaces (one space above for the “lamed,” and one space below for the “end of chaf”).
The commentators ask on Rabbi Avahu’s opinion: How can he maintain that the document is invalidated with one line of text and two spaces (one above and one below it) when the Gemora above clearly ruled that it is a space of two lines of text that invalidate a document!?
Some Rishonim answer that Rabbi Avahu disagrees with Chizkiyah and hold that the amount of space needed to disqualify the document is not measured according to the handwriting of the witnesses; rather, it is based upon the handwriting of the scribes. Accordingly, it is sufficient with one line of text and two empty spaces, for the scribe may manage to use the space for two lines of text with an empty space between them. According to this explanation, Rabbi Avahu agrees with the braisa above, which ruled that a space of two lines of text invalidates a document.
Tosfos Ri”d answers that Rabbi Avahu maintains that the space of two lines of text which invalidate a document is without any space above them or below them; it is referring just to the lines of text and the space between them (not like Rav Nachman bar Yitzchak). According to this interpretation, Rabbi Avahu’s amount and the ruling of the braisa are precisely identical, for one line of text with two spaces is exactly the same as two lines of text with one space between them.
The Ritv”a writes that Rabbi Avahu holds that the two lines mentioned above that invalidate a document refer to two blank spaces surrounding one line of text.
Last Line of the Contract
Rabbi Yochanan says that a contract must review its content in the last line, and Rav Amram explained that this is because we disregard anything in the last line before the signatures.
The Rishonim explain that we fulfill this by writing vkanina – and we (the witnesses) received authorization regarding everything stated above.
The Rosh rules that if a contract does not summarize its content at the end, it does not conform to the required format of a contract, and is invalid.
The Ramban rules that it is valid, but we disregard whatever is written in the last line.
The Shulchan Aruch (HM 44:1) rules like the Ramban.
The Rishonim state that our custom is to fill in the last line with the phrase “v’hakol sharir v’kayam” - and all of this is in force and validated.
The Rashbam says that this phrase is a form of validation, and gives the line above it full legal force.
Other Rishonim disagree and state that even with our contracts, the last line has no legal validity.
Rabbeinu Tam explains the form of a get, in which we write the following last 2 lines:
v’dain etc. – this should be a contract of divorce
k’das moshe v’yisrael – as instituted by Moshe and Yisrael
Rabbeinu Tam says that the first of these lines is an integral part of the get, and not just a review of the earlier text. The last line takes the place of the validation of sharir v’kayam, and gives the preceding line legal validity.
The Rosh says that nowadays we require a contract to end with sharir v’kayam, and any contract without it is invalid. We therefore give all the preceding lines full legal validity.
The Shulchan Aruch (HM 44:9) rules like the Rosh.
See Shach (10-12, 21) for a deeper discussion of the rationale and ruling regarding sharir v’kayam.
The Gemora explains that a contract with two blank lines is invalid, since we are concerned that one will put false information in one of the blank lines.
The Ramban explains that on a contract with more than one blank line, we are concerned that there may have been more than two blank lines, and the last lines are false.
The Ri Migash says that even if we see nothing that would indicate that (no content at the end to the advantage of the creditor), the contract is invalid, since he could have forged part of the contract.
The Rema says that this is a fine on the holder of the contract, since he made forgery accessible.
1 ½ lines
The Gemora discusses whether a contract with 1 ½ blank lines before the signatures is valid or not, and resolves that it is not.
Tosfos (162b iba’ya) debates what was the case that the Gemora was discussing. Tosfos says that if the contract finished in the middle of a line, and the remainder of that line, in addition to the next line, was left blank, such a contract is clearly invalid, since the holder of the contract can fill in the space after the text of the contract. The other option is a case where the contract ended at the end of a line, a blank line was left, and the witnesses started signing half way through the next line. Tosfos says that such a case should clearly be valid, since the only line that can be filled in is the one before the signatures, and we disregard that line. Tosfos concludes that the Gemora’s question was a width of 1 ½ lines, similar to the measure of one and two lines, discussed in the braisa.
Filling in with Relatives
The Gemora cites Chizkiyah’s statement that if one filled in blank space in a contract with witnesses that are relatives to the parties, the contract is still valid.
The Rishonim debate in what context Chizkiyah made his statement. Rabbeinu Chananel says that Chizkiyah is referring to a get kereyach – a bald contract, i.e., a closed contract (mekushar), which is missing witnesses. Such a contract must be signed by three witnesses on each of its enclosures. Chizkiyah is saying that if one used relatives for the extra signatures necessary, the contract is valid.
The Mishna in Gittin (81b) records a dispute between Rabbi Akiva and Ben Nanas about this case and Chizkiyah is ruling like Rabbi Akiva, who only allows relatives to fill in the necessary signatures.
The Rashbam challenges this position, since Chizkiyah, an Amora, would not need to rule or discuss a case that was already discussed in a Mishna, nor would he need support from a braisa, since he is supported by Rabbi Akiva in a Mishna.
Rather, the Rashbam says that Chizkiyah is discussing the case of our Gemora, i.e., a contract that had too much blank space before the signatures, and is stating that if one filled in this space with related witnesses, the contract remains valid.
The Mishna in Makkos (5b) states that if a group of witnesses testify, and one is found to be invalid, the whole testimony is invalidated.
Tosfos (162b nimtza) cites different opinions regarding how to reconcile this Mishna with Chizkiyah’s statement, validating a contract in which relatives signed to fill in blank space.
The Rambam (Edus 5:6) rules that a contract with two valid witnesses is assumed valid, even if the remaining witnesses are not valid. If the witnesses are available, or if others were there, we investigate whether they signed together. If they signed together, the contract is invalid, but it is otherwise valid.
Rav Chaim Brisker explains that the Rambam considers witnesses on a contract to have two parts to their testimony – the witnessing, which takes place at signing, and the testimony, which occurs when the contract is brought to court. When a contract is brought to court, the Gemora says that witnesses signed in a contract are considered to be fully examined and accepted, and they therefore exist independently, and the invalid witnesses do not affect the valid ones’ testimony. However, if they signed together, they have joined together in their witnessing, and therefore fall under the ruling in Makkos, invalidating the contract they signed.
Invalid Schach and Gaps
Chizkiyah cites the rules for gaps in s’chach, and invalid s’chach, as a precedent for his ruling that invalid witnesses can be better than blank space in a contract.
Tosfos explains that the measures given for invalid s’chach (4 tefachim) and gaps (3 tefachim) are only in a case where these areas go from one end of the sukkah to the other, and thereby make the valid s’chach not be surrounded by three walls, or when there isn’t the minimum area of valid s’chach (7 x 7 tefachim). However, if the valid s’chach surrounds these areas, or if these areas are in a location where the valid s’chach has 3 walls around it, and there is at least 7 x7 tefachim of valid s’chach, they do not invalidate the sukkah, but only their location itself.
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The Gemora rules: It is obvious that if he designated all of his property to his adult son, we assume that he only appointed him to be a guardian (for he would not want to take away his other children’s inheritance).
The Rishonim ask: How can our Gemora say that the father’s stipulation is not effective when the Gemora above (130a) explicitly rules that the halachah follows Rabbi Yochanan Ben Berokah?
The Rash”bam (ibid) says that the halachah follows Rabbi Yochanan Ben Berokah only when the father uses the expression “as an inheritance”; however, our Gemora is referring to a case where he used “as a gift” expression, and in such a case, the Gemora here rules that his real intention is to make him a guardian.
The Ram”ban answers that the halachah follows Rabbi Yochanan Ben Berokah only when the father stated his stipulation, however, our Gemora is referring to a case where he wrote it down.
The Ro”sh quotes Rabbeinu Chananel who says that before, the Gemora was referring to a case where he wanted to increase the portion to one son and decrease the portion of another; he did not give his entire estate to one person. Here, we are dealing with a case where he gave one of them his entire estate. In such a case, we may assume that he meant for that person to be a guardian on the estate on behalf of the others.
The Rash”ba explains that the Gemora before was discussing a specific case where he clearly said that he wants that particular person to inherit him and he does not want him to be a guardian.
The Baal Hameor understands our Gemora to be referring to a case where the sons are minors, or they are overseas. In such a case, we assume that the designated son will be appointed as a guardian.
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Rava said: Rabbi Yochanan ben Berokah’s reason is based upon the following verse: It shall be on the day that he bequeaths to his sons. This indicates that the Torah gave authority to a father to bequeath to whom he desires to inherit his estate.
It is brought in the Sifri that the father has such a right even on prospective property, i.e. those that he does not currently own, but they will become his. He can say that he wants property that is not actually in existence yet to be inherited by whomever he desires. Reb Akiva Eiger, however, cites the R”if, who holds that the father cannot give away property that is not yet in existence.
There is another dispute regarding this halachah: The Nesivos quotes a Rit”va, who holds that the father may retract from this stipulation up to the moment he dies. The Ketzos Hachoshen disagrees.
The Mikdash David explains these two arguments with the following chakirah: When the father bequeaths his property to one of the sons, is he establishing that this particular son is his sole inheritor, or are all the children inheritors; the father is merely designating this property that it should belong to this particular son?
If the father is establishing that this particular son is his sole inheritor, this stipulation will be effective even on property that is not yet in existence, for once this son has been established as the inheritor, he will inherit whatever potentially should have belonged to the father. If, however, he is merely designating this property to belong to one of his sons, he can only do that on property which currently belongs to him.The same can be said regarding retraction: If the father is establishing that this particular son is his sole inheritor, he cannot retract from that (he may, however, in the future, add other inheritors, for he is not taking away the inheritor status from this son). If, however, he is merely designating this property to belong to one of his sons, he may retract up until the moment that they actually take possession of the property.
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By: Rabbi Yaakov Montrose
The Gemora discusses a case in which a person draws three boundaries of the field that he is selling, but he does not include the fourth boundary. The Gemora presents two versions of Rava’s position on the matter. According to both versions, if the fourth boundary is “muvla” — “absorbed” (see sketch in Rashbam D”H v’Lo Amaran) and there is no important piece of property in the area of the fourth boundary (meaning that there are no hedge of palms on it or nine kav of seeds could be planted there), the area is included in the sale. In the opposite case, where the fourth boundary is not muvla and the area is important, it is assumed that it is not included in the sale. The difference between the two versions is in a case in which only one of the two factors is present (it is muvla but the area is important, or the area is not important but it is not muvla). The Gemora concludes that the halachah is “shuda d’dayanei.”
The Rishonim explain that although “shuda d’dayanei” usually means that the judges of the Beis Din may do whatever they see fit without any reason or proof for their decision, the application of “shuda d’dayanei” in this case is different. The Rishonim quote a tradition, which some say dates from the Rabbanan Savorai, that although in such a case the halachah should follow the second version of Rava, or the halachah should be “ha’Motzi me’Chaveiro Alav ha’Re’ayah” – the one who is exacting money from his fellow must bring the proof, the ruling of “shuda d’dayanei” here is “an logical decision” by the judges. What does this mean?
The Rosh explains that Rava actually said both statements quoted in his name. How, though, could he have said two contradictory statements? The Rosh explains that Rava’s two statements are not contradictory; the halachah may differ depending on the details of the specific case. The judges should assess the mindset of the seller, the mindset of the buyer, the local custom, and the amount of money paid in the sale. Only then should they make a decision, which could follow either statement of Rava, depending on the details of the case.
The Nimukei Yosef similarly mentions that the mindset of the seller and the amount of money paid is a factor in the decision of the judges, although he does not mention the mindset of the buyer and the local custom. It is unclear whether his view differs from that of the Rosh.
The Pilpula Charifta notes that the Rosh and Nimukei Yosef certainly take into account that the halachah follows the Chachamim (76b) who do not apply, in most situations, the principle of “Damim Modi’im” – “the money shows” to decide a case. However, in this case, in which the ruling is “shuda d’dayanei,” the Chachamim directed the Beis Din to utilize all means possible to determine the correct verdict.
The Rashbam writes that the judges should assess the intentions of the seller, and based on that assessment they should decide what to do.
The Rambam (Hilchos Mechirah 21:15) similarly states that the intention of the seller is the only factor taken into account, in contrast to the view of the Rosh and Nimukei Yosef who write that the amount of money paid should also be taken into account.
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A person sold a field to his friend, and drew one border long and one border (on the opposite side) short. Rav says: In such a case, the buyer only acquires the amount of field that is opposite the short side.
Rav Kahana and Rav Assi asked Rav: Why shouldn’t the border should be from the small side to the long side (a diagonal line)?
Rav was quiet, and did not answer.
The Chavos Yair (responsa: 152) quotes the Rema who writes that it is well known that Rav is in fact Rav Abba, the chosen disciple of Rabbi Shimon ben Yochai. And everytime that the Gemora says, “Rav was quiet,” it does not mean that he was silent because he did not know; rather, he knew how to answer according to “sod” – the hidden secrets of the Torah, and he did not want to reveal them.
The Chavos Yair explains the Gemora in Bava Kamma (11a), which relates that since Rav Kahana and Rav Assi asked Rav, “Is this truly the halachah?” and he kept quiet, we can conclude that the law of assessment does indeed apply. Although it couls have been said that Rav remained silent for he did not want to reveal the hidden secrets of the Torah, nevertheless, we do not rule in halachic matters based on “sod,” rather, it is solely dependent on the “revealed” portion of the Torah.