Friday, January 29, 2010

Public; Tzadikim's Vision; Paternity - Bava Basra 142


Shmuel once said to Rav Chana Bagdasaah (from Baghdath, or an Aggada expert), “Go out and bring me ten people (so that the ruling should be publicized) in order for me to say to you before them that one who gives something to a fetus, the fetus has acquired it.”

It would seem form this Gemora that if something should be publicized, ten people are required.

This is also evident from the Gemora Sanhedrin (74b) which states that a person who is in public must be martyred even for a minor precept rather than violate it. Rabbi Yaakov said in the name of Rabbi Yochanan: The minimum for publicity is ten. This is derived from the verse [Vayikra 22:32]: And you shall not profane My holy name; but I will be holy among the children of Israel.

It is written [Bamidbar 16:21]: Separate yourselves from among this congregation, that I may consume them in a moment. An analogy is drawn from the use of congregation (edah) in two passages; one, just quoted, and the second, [ibid 14:27]: How long shall I bear with this evil congregation. ‘Congregation’ there refers to the Spies sent out by Moshe. As Yehoshua and Calev had dissociated themselves from their evil report, ten were left, all Israelites. Thus we see, that ten Israelites creates a quorum.

This applies to desecrating the Shabbos in public as well. The Peri Megadim (Sifsei Daas Y”D 2:17) states in the name of the Rashba: If there are ten men present when one violates the Shabbos, one is regarded as a desecrator of Shabbos in public.

This would seemingly be inconsistent with a Gemora in Bava Basra (39b) which states according to one opinion: A protest must be lodged in the presence of three people because this way, we are certain that the protest will become known.

The Gemora in Gittin (33a) also states that three people make a matter public. The Gemora rules that if a husband wishes to nullify a get, he must do so in front of three people. This is to ensure that the matter becomes known, and his wife will not mistakenly get married.

The Sdei Chemed (V p. 260) answers: Three people are sufficient when we wish to make something public knowledge; once three people know about the matter, we are certain that the public will become aware of this. However, when something must be performed in public, it is only regarded as being public, if ten Jews are present at the moment it occurred.

Refuting a Denial of Paternity

by: Meoros HaDaf HaYomi

In the previous sugyos (127b) we learned that a father is believed to declare one of his sons as his firstborn even if another had been assumed as such and that the newly declared firstborn gets a double portion of his father’s estate. The halachah was ruled according to Rabbi Yehudah, that a father is believed even in opposition to chazakah – the long-assumed status of another son. Moreover, a father is believed to declare a certain son as his firstborn even if the older brother must perforce be understood to be another’s son born to his married wife, and therefore passul (Tosfos, ibid, s.v. Kach; Tosfos also offer another explanation for a father’s credibility to discredit a son). The Gemora learns this halachah from the verse “…for the firstborn…he shall recognize” (Devarim 21:17) – i.e., he may recognize him even in the presence of others.

Many Rishonim hold that a person is also believed to recognize someone who was not even known to be his son, as his firstborn, or, in modern terms, declare his first paternity. The Rishonim explain that the Torah lends a father such credence as no one else can reliably offer such testimony.

Ramban maintains that every Jewish father has a positive mitzvah to let people know that a certain one of his sons is his firstborn who is to inherit a double portion. If this fact is known already, the father fulfils the mitzvah by remaining silent (Ramban on Sefer HaMitzvos, negative mitzvah 10).

Lack of space prevents us from elaborating the many details, rules and differences of opinion concerning a father’s recognition of his firstborn. A sad event, though, occurred in Europe about 180 years ago when a person with a pregnant wife claimed that the baby wasn’t his as his having been far from home precluded his paternity. The couple eventually divorced and 20 years later the son asked the local beis din to examine the circumstances of his birth. Witnesses then came forward who discredited the husband’s claim that he had been away at the time of the son’s conception and the only remaining support for the father’s claim was if a father has the right to “recognize” who is his son.

The question was referred to HaGaon Rabbi Akiva Eiger zt”l who thoroughly investigated the issue. He mentions (Responsa Rabbi Akiva Eiger, I, 128) several opinions of Rishonim to support the view that in such a case the father is not believed. Among others, he cites the Tosfos Rid on Bava Basra 128b, that a father is not believed if the mother contradicts him, and the Ba’al Halachos Gedolos that he is believed to declare a young man his firstborn even if his wife’s older son is perforce understood to be another’s son and pasul, but he is not believed to directly declare that someone is not his son (see ibid another opinion attributed to the Riaz).

The main chiddush of Rabbi Eiger’s long reply stems from our sugya, which explains that a firstborn born after his father’s demise is not entitled to a double portion of the estate as the father could never recognize him. If so, contends Rabbi Akiva Eiger, a father can’t “recognize” (i.e. declare) his firstborn before his birth either, as then, too, he can’t see him. In our case, the father denied his paternity before the birth, but, according to the Gemora, he can’t do so! The father’s authority to recognize his firstborn is valid only when he sees him (see ibid with proof from the Rosh).

How Far is the Perception of Tzadikim!

Concluding his reply, Rabbi Eiger departed from his usual style and quoted his son-in-law, the Chasam Sofer zt”l, whom he asked for his opinion. The Chasam Sofer then expanded on the topic and discussed a subject which had not yet been raised: What would the decision be if the witnesses contradicting the husband’s testimony were related to each other and therefore disqualified? His father-in-law subsequently wrote: “I’ve now seen how far is the perception of tzadikim as he extraordinarily dealt with an issue without being asked. When Rav Pila (the local Rabbi) investigated the matter, however, he discovered that the witnesses were indeed related and we thus see that Hashem’s spirit spoke through him.”


A Deceased Convert’s Property

By: Reb Avraham Klein

The Gemora mentions a case involving a deceased ger’s (convert) property that was acquired. Although a ger is a bona fide Jew in every aspect, when it comes to inheritance, there is often a major difference between him and the rest of Klal Yisroel - namely, Jewish relatives. Every Jew has some living relative if you go far enough up or down his family tree. A ger, however, has a status of a newborn in terms of relation; therefore, unless he married and had children, his property would have nowhere to go, and therefore anyone that is machzik (a legal acquirement though kinyan chazakah) this ger’s property, now becomes the owner.

The Gemora discusses a case in which a ger died and someone was machzik the ger’s property, and then he heard that the deceased ger has a son, or he heard that the ger’s wife is expecting - either case would obviously negate this person’s kinyan, for the property belongs to the relatives of the ger. And then he heard that the son died, or he heard that the ger’s wife had a miscarriage - now there isn’t any living relatives. So if the person is machzik it again (or anyone else for that matter) then he would acquire the ger’s property.

There is a major dispute as to the reading of the Gemora. Rashbam learns that when he heard that the son died, that is when he actually died, meaning, that when he heard that there was a son, that report was true.

Rambam (Hil. Zchiah Perek 2 Hal. 18) learns that when he heard that the son died, that means that the report that the son was alive, was false. For in actuality, the son had died before this person was ever machzik. The Maggid Mishnah proves that the Rambam’s way of learning this Gemora is correct, and brings up serious questions on how one can learn this Gemora the way the Rashbam does. The Mishnah Lamelech argues with the Maggid Mishnah and explains the Rashbam in a novel approach.

The halachah would depend on how one learns this Gemora. Without going into a lengthy rationale (see the Maggid Mishnah and Mishnah Lamelech above), if one would understand the Gemora like the Rashbam, the halachah would be that the first person that was machzik would in fact be the owner. According to the Rambam the halachah would be that the second person that was machzik is the owner.

The Shulchan Aruch (Choshen Mishpat Siman 275 Sief 30) rules in accordance with the Rambam, and the halachah is that the second person is the owner and not the first.