Where to Return?
The Mishna stated that one who incurred an obligation to pay in a settled area may not pay in a desert. The Shitah quotes the Rema that explains that the rule is that if the obligation was incurred in a secure area, one must pay back in a secure area. If the original place of the obligation is now not secure, the payment may not be made there, even though it was incurred there. The Meiri states that if the receiver of the payment agrees to accept the payment in the desert, it is then a valid payment, and releases the debtor from his obligation.
Where to Claim?
The Gemora explained that in all cases but a loan, the creditor may not claim the object from the debtor anywhere besides the original place. The Meiri explains that this is because generally items that are not fungible as a loan is will only be in their original place, and we do not force the debtor to return to that place. However, if the debtor has the item with him, he must return it wherever the creditor demands it. Furthermore, if the debtor is a thief, but he acquired the object through a change, the obligation now has the rule of a loan, since it is purely a monetary obligation, and may be demanded anywhere. The Ramban adds that even in the case of a loan, the creditor must leave the debtor with enough money for him to support himself until he leaves the desert.
When discussing the Mishna about one who is unsure of his obligation, the Gemora introduces the concept of ba latzais yedei shamayim – one who cannot be forced to pay in court, but wants to fulfill his religious obligation. Rav Shimon Shkop in Shaarei Yosher (5:16) discusses the nature of this obligation. One has no obligation to fulfill his religious obligation, but if he does want to, he is opting to not invoke his power of ownership (muchzak), and then is obligated based on the standard rules of bari and shema. It is a good character trait to want to fulfill such an obligation, but we do not try to persuade him to do so. This is different than the concept of chayav b’dinei shamayim – one who is obligated at a religious level, but not in a court context. That situation is one where a clear obligation exists, but cannot be directly enforced by a court. We do, however, provide inducements to persuade him to do so.
The Need to Know
The Gemora discusses different levels of knowledge that a theft victim must have when the thief returns an item. The Rashba states that once the victim saw someone steal his item, the thief must notify the victim so that he does not consider him a thief anymore. The Rashba therefore holds that if the victim just realized that an item was stolen by noticing that one was missing, this is not considered knowledge of the theft. The Sma states that once the item is stolen, the victim despairs of having to guard it, and therefore must be aware of its return. According to the Sma, once the victim notices the item missing, this would be considered knowledge of the theft.
The Rif and Shulchan Aruch rule like Rav Chisda and Rabbi Yochanan. The Rif explains that Rava explains Rav Chisda, and agrees with him, indicating that the halachah follows his opinion. When dealing with an inanimate item, Rav Chisda would agree to Rabbi Yochanan. In any case, we would rule like Rabbi Yochanan, since he is favored over both Rav and Shmuel in general. The Baal Hamaor, however, rules like Rav. One of his reasons for this ruling is the fact that the Gemora established the opinion of Rabbi Akiva to follow Rav in the case of a coin. See Biur Hagra (HM 365:1) for a discussion of why the Rif ruled like Rabbi Yochanan against the majority of Rav and Shmuel. See Responsa Rabbi Akiva Eiger (1:155) for a detailed discussion of the Baal Hamaor’s opinion.
The Gemora said that Rabbi Akiva and Rabbi Yishmael argue about a case of a guardian who stole the item he should be guarding. Rabbi Akiva says that the theft ended the term of the guardian, and he must now return it to the owner’s possession, while Rabbi Yishmael says that the guardian’s term is not ended, and he must just return it to its original place. The Rishonim explain that Rabbi Akiva holds that once the guardian stole the item, the owner would not trust the guardian anymore. The Rashba discuss why Rabbi Yishmael requires him to return it at all – if the guardian’s term is not over, it is safe in his possession, and should not have to be returned.
The Rashba offers three answers:
1. Rabbi Yishmael is not being precise
2. Rabbi Yishmael is referring to a case of a coin, which must be kept in its designated place
3. Even an animal should be in its flock, to ensure it doesn’t run off
The Rashba states that once the Gemora establishes the dispute in the case of a guardian, it does not depend on any specific opinion about the level of knowledge necessary. Rashi, however, states that even this reading of the braisa assumes that both Rabbi Akiva and Rabbi Yishmael agree with Rav Chisda’s position.
What’s in the Pocket?
The Gemora offers an explanation of the braisos dealing with returning stolen money at a later sale that distinguishes between putting money in an empty pocket or by putting it in a pocket that has money. Rashi explains that in an empty pocket, the owner will count the money and realize it was returned, while in a pocket with money, he won’t realize how much was added. The Rif, however, explains that in an empty pocket, he will not count the money, and not realize it was returned, while in a pocket with money, he will count it and realize the extra money. The Shulchan Aruch (H”M 365:1) states that if the pocket was empty, the thief has not fulfilled his obligation, but if the pocket had money, and the owners knew how much, the thief has fulfilled his obligation. The Gra explains that the Shulchan Aruch is ruling like the Rif, but adding in Rashi’s qualification. The Rif only stated that generally one knows how much money is in their pocket, when it’s not empty, since they check it periodically. Once they know how much is there, they will realize the extra, since they will again check. However, the Rif would agree with Rashi that if the owner did not know how much money was there, putting the money there is not notification.
The braisa stated that one may purchase wool shearings that are tfurim. Rashi explains that this means when the wool was made into clothing, in which case the shepherd acquired the wool by its change. The Raavad says it means shearings that are connected and put into large groups. The reason one may buy is that such large items are probably not stolen, because a thief would not draw attention to himself. The Rashba explains, based on the tosefta, that it means pieces of wool that are stuck on bushes. Since they are so insignificant, the flock owner does not mind if the shepherd takes them.
Friday, April 24, 2009
Where to Return?
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Wednesday, April 22, 2009
Rav Kahana asked Rav (Bava Kamma 116a) : If one person saved the other person’s donkey (on condition that he would be paid for his donkey), and the first person’s donkey ended up being saved anyway, what is the halachah?
Rav answered: Heaven had mercy on him (and the owner of the donkey he saved must still pay him the value of his donkey).
This is comparable to the case of Rav Safra. When Rav Safra was traveling with a caravan, a lion joined them and started traveling with them (protecting them from bandits and other wild beasts). Every night one person from the caravan would feed the lion his donkey (in order that he should not attack them). When it was Rav Safra’s turn, he offered the lion his donkey (rendering it hefker), but the donkey did not eat it. Rav Safra quickly went and reacquired his donkey. [Rav Safra had fulfilled his obligation by offering his donkey. He was not obligated to contribute any more to the cause, for the return of his donkey was regarded as a miracle – Heaven sent, and that would not undo the fulfillment of his obligation. This is comparable to Rav’s ruling: Since the rescuer’s donkey was miraculously saved, it does not undo the obligation from the owner of the donkey that he saved.]
Rav Acha from Difti asked Ravina: Why did he have to reacquire the donkey? When he made the donkey ownerless, he only did so because he had to feed it to the lion, not in order that anyone who wants can acquire it (i.e. he did not really make it hefker in the first place)?
Ravina answered: Rav Safra did this as an added precaution (just in case someone would claim that it did not belong to him any longer).
Tosfos asks: The Gemora in Bava Metzia rules that someone who rescues an animal from a lion attack is permitted to keep the animal for himself, for the owner abandoned hope of ever recovering his animal; it is therefore regarded as hefker. If so, shouldn’t Rav Safra’s donkey be legally regarded as hefker?
Tosfos answers that there is a basic distinction between the two cases. Here, the lion is not an attacker, but rather, it is a protector. The lion never attacked Rav Safra’s donkey; the donkey was given to it. It was not inevitable that the lion would kill the donkey. There could have been times that the lion was satiated and would have no interest in eating on that particular night. Accordingly, Rav Safra did not give up hope on his donkey, and is therefore not considered halachically hefker.
The Chazon Ish explains as follows: If Rav Safra’s donkey would have been saved in a completely natural manner (e.g. if there would have been other nights where the lion was satiated and did not kill the donkey), he would have been obligated to repay the others, for he would not have contributed to the caravan’s protection. The Gemora stresses that this was viewed as a miraculous event, for every other night, the lion did consume the donkeys. Rav Safra, being a holy person, was accustomed of having miracles performed on his behalf, and therefore he knew that there was a possibility that a miracle might happen and his donkey will be spared. It was therefore regarded as if he paid his portion towards the caravan’s protection.
However, with respect to reacquiring his donkey, it is not sufficient to say that Rav Safra relied on the fact that a miracle might occur and therefore he would not abandon hope on retrieving his donkey. It would depend on the type of miracle. If a public miracle, revealed to all, one that would involve a change in the laws of nature would occur and his donkey would be spared, even if Rav Safra was confident that such a miracle will happen, it would be regarded as if he had despaired on his donkey and he would be required to reacquire the donkey. It would be as if a different donkey was sent down from Heaven. This is because the Torah was given according to the laws of nature, and the halachah will not change due to an open miracle. But, if the miracle would be a hidden one, one that would be concealed by nature, although it only happened because of Rav Safra, it would be regarded as a natural occurrence, and if Rav Safra would be confident that this would occur, the halachah would consider it as if he did not abandon hope about it. This is because all of nature is in truth governed by Heaven, and a miracle such as this would be considered a natural occurrence for one who is accustomed to such miracles. Therefore, since there are times when a lion, due to some abnormality in its stomach, be satiated and it will have no desire to eat, this is viewed as a natural even that Rav Safra was waiting for, and it is as if Heaven sent satisfaction to the lion in order for it not to consume Rav Safra’s donkey.
It emerges from the Chazon Ish that something that changed through an open miracle is not halachically regarded as being the same item that it was before. This would be similar to Reb Chaim Brisker’s challenge to some of the answers given to the Beis Yosef’s famous question.
The Beis Yosef asks: Why do we celebrate Chanukah for eight days if we are celebrating the miracle that the oil that should have lasted for only one day instead lasted for eight days? We should celebrate Chanukah for seven days, since only seven days of the burning of the oil were miraculous!?
He offers two solutions to this problem. He first suggests that on each night, when the oil was poured from the container into the Menorah, the jug remained completely full (similar to the miracle performed by Elisha). Another suggestion is that after every night, all the oil remained in the Menorah.
Rav Chaim Brisker challenges these two answers, arguing that miraculously generated oil is not acceptable for the lighting of the Menorah. He notes that the oil used for the Menorah is described not merely as “Shemen” (oil) but as “Shemen Zayis,” oil produced by an olive tree. This implies that it must be produced by an olive tree, and not by a miracle.
This parallels that which the Chazon Ish stated: The fact that it was a public miracle would change the nature of the oil. Beforehand, it was olive oil, but now, it is “Heaven-sent oil.”
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The Gemora (Bava Kamma 115b) says that it is forbidden to drink from water that has been left uncovered for there is a concern that a poisonous snake drank from it and left its venom inside. Te Gemora rules that one cannot give this water to an animal.
Rashi explains that the rationale is that we are concerned that one may slaughter the animal and it will be dangerous to the person who eats from this animal.
Tosfos points out that Rashi’s approach would only apply to a kosher animal, but in truth this halachah should apply to a non-kosher animal as well, because there is a violation of ba’al tashchis - the killing of an animal for no reason at all.
Tosfos proves this from a Gemora in Avoda Zara 30b that it is only permitted to feed it to a cat (snake eater) which will not be damaged by the venom. This implies that it would be forbidden to feed it to other non-kosher animals that will be poisoned by the venom.
Reb Avi Lebowitz points out something interesting from Tosfos regarding ba’al tashchis. Usually we refer to something as wasteful because it has a function to serve a human and it is being wasted. But in a case where the object provides no direct benefit to a human being, one can argue that it is permitted to waste it without any violation of ba’al tashchis. Tosfos says that this is not true, because even a non-kosher animal, similar to a cat that is not designated to assist people in carrying loads or plowing a field, nevertheless, it cannot be killed for any reason and would constitute a violation of ba’al tashchis.
It is noteworthy that the Halachah L’Moshe writes that according to Tosfos, who maintains that the prohibition against giving these animals to drink from the uncovered water is because of ba’al tashchis, this would apply only to one’s own animal and an animal belonging to his fellow. However, it would be permitted to give this water to an ownerless animal, for this prohibition is not applicable to animals which are hefker.
Tuesday, April 21, 2009
Rebbe had said (Bava Kamma 114b): I say that a ganav is like a gazlan.
Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?
Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.
He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.
Sunday, April 19, 2009
It is evident from the Gemora that the law of the kingdom has the full force of halachah behind it. The Ritva writes that we do not find anyone that disagrees with this principle.
The Rashbam explains the rationale for this halachah: All citizens of a country voluntarily accept upon themselves to obey the king’s decrees and laws. All of their laws are therefore binding. Accordingly, one who possesses his fellow’s property based upon that particular country’s law, does not violate a prohibition of stealing at all.
The Rashba explains it differently: Since the entire land belongs to the king, he is entitled to chase anyone away from his land if he wishes, and he has the right to tax everyone for the privilege of residing in his land.
A difference between these two opinions may be if this halachah would apply in Eretz Yisroel with a Jewish king. According to the Rashba, it might not apply in Eretz Yisroel, for every Jew has an inalienable right to live there, and no king would have the jurisdiction to banish anyone from the Land.
The Ra”n in Nedarim 28a rules that this principle applies only in the lands of the exile. The reason for this, he explains, is that in these countries, the land is the property of the kingdom, and one is therefore obligated to abide by the laws and ordinances of the country in which he resides. But, in Eretz Yisroel, which belongs to the entire Jewish nation, there is no obligation to comply with the laws of a Jewish king. The Rambam and Shulchan Aruch both rule that this principle does apply to a Jewish king in Eretz Yisroel.
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Shmuel states: The law of the government is the law (even according to our law).
The Gemora in Shabbos (88a) teaches that when Bnei Yisroel stood at Mount Sinai and heard the word of Hashem, He held the mountain over our heads. Hashem declared, “If you’ll accept the Torah, all will be well. If not, this will be your burial place!” Rav Acha bar Yaakov said: This can now be used as an excuse for Klal Yisroel when they do not perform the mitzvos. For when they are summoned for judgment, they can claim that they were coerced into accepting the Torah; it was not done willingly.
The Perashas Derachim asks from our Gemora which states that the law of the kingdom is the law. If so, this should certainly apply by The Holy One blessed is He, Who is the King of all Kings. How could Klal Yisroel use the coercion as an excuse? The law of the kingdom is the law, and they took an oath obligating themselves to perform His mitzvos!
He answers that Rabbeinu Tam holds that the principle of the law of the kingdom is the law is only applicable if the king decrees on all his subjects. However, if the decree is issued only on part of his kingdom, this principle does not apply. Since Hashem is the King over all the nations of the world and He only forced Bnei Yisroel to accept His mitzvos, this principle would not apply and hence, a claim of coercion can be effective.
It emerges that regarding the seven mitzvos that were given to all Bnei Noach, the principle of the law of the kingdom is the law would apply, and a claim of coercion would not be valid.
According to this, the Ketzos HaChoshen explains the argument between Pharaoh and the midwives. Pharaoh asked them, “Why didn’t you listen to my commandment? The law of the kingdom is the law and since I the king decreed that all the Jewish children should be killed, you are obligated to listen to me!” They responded to him, “Your decree is not a universal one; it was only issued regarding the Jewish children and not to any others. Accordingly, the principle does not apply and we are not obligated to adhere to the laws of the kingdom. Thereupon, Pharaoh immediately decreed that all children born must be thrown into the sea.
Reb Shlomo Kluger uses this principle to explain Adam HaRishon’s response to Hashem. He answered, “The woman that you gave to me gave me from the tree and I ate.” What kind of answer was this? Adam HaRishon was saying that since his was wife was here as well and she was not commanded not to eat from the tree. Therefore, the law of the kingdom does not apply and that is why he ate.
Rava said: If their father (after he died) left them a cow which was borrowed by him, they may use it for the entire period for which it was borrowed.
The commentators ask: How are the heirs permitted to use it? The halachah is that a borrower is not permitted to lend the item out to anyone else, for the owner can say, “I do not want my deposit to be in the hands of someone else”!?
The Hagahos Mordechai answers that since it is self understood that a borrower will give the item to his wife and children, this would be permitted even after the borrower’s death.
The Machaneh Efraim asks on this interpretation that if so, it should only be permitted by the borrower’s sons and only if they are supported by the father!? Otherwise, it should be forbidden, and from the halachah, this does not appear to be the case!?
Reb Akiva Eiger answers that the halachah that a borrower is not permitted to lend the item out to anyone else is only l’chatchilah; however, once he lends it out, the owner cannot take it away from him. Therefore, in this case, where the children took possession of it through an act of Heaven, they are permitted to use it.
The Erech Shai answers that the owner may be particular only to say that he did not intend to lend it out to someone else; however, with respect to the death of the borrower, which is not such a common occurrence, he cannot say that if I would have known that my cow would end up by the inheritors, I would not have lent it in the first place. The heirs therefore are permitted to use it.