Friday, January 29, 2010

POST 2000!!!!!!! --- Testimony

Real Estate Testimony

Mar Zutra says that one between thirteen and twenty may testify on matters related to movable property, but not on real estate. Rashbam says that someone that age does not have a clear understanding of transactions involving real estate.

Tosfos (155b Lo amru) disagrees, and says that a lack of business sense should not prevent one from testifying. Instead, Tosfos says that he is only unsuited for a formal appraisal of real estate. Tosfos notes that the Gemora says that one at this age is overly impressed by money, and will therefore underestimate the value of the field.

The Shulchan Aruch (HM 35:3) rules that one who is below twenty, and does not exhibit any business sense, may not testify on real estate cases, seemingly like the Rashbam.

The Shach (3) says that the Shulchan Aruch only is referring to cases of real estate appraisal, in line with Tosfos.

The Gemora says that one under eighteen or twenty may not sell his father’s property.

Rashbam and the Rif say that this is limited to his father’s property, since he will decrease the equity inherent in that property by selling at such a young age. However, if he purchased property himself, he may sell it.

Rabbeinu Tam (155a Mochair) says that this applies equally to his own property, since he will sell it as well for a severely discounted price.

The Shulchan Aruch (HM 235:1) rules like Rabbeinu Tam.

How Old and how Sharp?

Rava rules that if someone understands business, he may sell real estate even before the minimum age. The Shulchan Aruch (HM 235:8) therefore rules that one above the age of thirteen who understands business may sell real estate.

For selling movable property, the Gemora cites the age of pe’utos, at which a child’s transactions are valid. The Gemora (Gittin 59a) defines this as ranging from 6-10, based on the sharpness of the child.

The Shulchan Aruch (HM 235:1) rules that as young as six, if a child understands business, he may conduct transactions.

The Rosh learns that the Gemora in Gittin is stating that until the age of ten we must investigate to see if the child understands enough, but from the age of ten and older, we assume a child understands enough, unless he acts irrationally.

The Rambam does not include the distinction at the age of ten, but simply says that a young child’s transactions are valid, if he understands.

The Gr”a (2) explains that the Rosh learns that the Gemora in Gittin was only requiring a level of sharpness until the age of ten, but not beyond.

The Rambam learns that the Gemora in Gittin is to be read as a continuing list of ages, depending on the sharpness of the child. Although the Gemora stopped at the age of ten, the intent was that at any age between six and thirteen, a child’s transactions may be valid, based on the sharpness of the child.

The Shulchan Aruch rules like the Rambam, while the Rama quotes the Rosh’s distinction.

The Shulchan Aruch (OH 199:10) rules that a boy at the age of pe’utos may be counted as the last one for a zimun.

The Magain Avraham (6) defines this as nine or ten, possibly based on the Rif’s formulation.

The Yechave Da’as (4:13) rules that this can be as young as six, as long as the child understands whom he is blessing.


By: Meoros HaDaf HaYomi

The Testimony of a Minor that could make him Bar Mitzvah

Our sugya explains that a minor cannot serve as a winess, as the Torah says: “And the two men will stand” – i.e., men who are qualified to testify but not minors (the verse could have just said “And the two will stand”).

In his Minchas Chinuch, HaGaon Rav Yosef Babad asks an interesting question: There is a halachic rule that a beis din must accept the testimony of any witnesses who comes to them. Now, as explained in tractate Rosh HaShanah, there is a mitzvah to determine the beginning of each month according to witnesses who testify that they have seen the new moon. The mitzvah was in practice till 4119, when Rabbi Hilel ben Rabbi Yehuda Nesiah – called Hillel II – convened a special beis din to fix our present calendar to overcome the worry that there would not be an expert beis din and other conditions necessary for determining Rosh Chodesh each month, due to the long galus.

The Minchas Chinuch raises the question of two young men who come to beis din at the end of Nisan, claiming they saw the new moon and that that day, then, should be announced as 1 Iyar. The beis din, however, discovers that the witnesses will celebrate their thirteenth birthday on 1st Iyar. As long as the beis din does not announce that day as 1 Iyar, they remain minors but if they accept their testimony, they are considered adults and that day may be announced as 1 Iyar. May or must the beis din accept their testimony?

Indeed, the Minchas Chinuch asserts that the matter is up to the beis din. They may accept the testimony, as once they announce that day as 1 Iyar, the witnesses are retroactively qualified. Still, they are not obligated to accept their testimony, as when they came to the beis din, they were minors (see Minchas Chinuch, ibid, that this solution is according to one answer of Tosfos in Makos 2).

Another question related to our sugya arises from Rashi’s commentary on Bava Kamma 88a (s.v. Pesulah l’edus). Rashi adds his own idea as to why the Torah disqualifies minors as witnesses. A minor, he explains, can’t be punished by beis din and if his testimony is revealed as false, he cannot be penalized. He therefore cannot testify, as the halachah is that a beis din may accept only such witnesses that can be refuted. Why, then, did Rashi feel the need to add to the above exclusion of a minor on the strength of the verse “And the two men will stand” and, on the other hand, since Rashi’s reasoning is so wonderfully valid, why must we learn the halachah from the verse at all?

The Acharonim offer several solutions: HaGaon Rav David Rapaport suggests a case that necessitates Rashi’s reasoning in addition to the halachic interpretation of the verse: If a beis din accepted the testimony of two witnesses and a doubt was later raised as to if they were adults or minors, we must behave as the halachah requires in any instance of a doubt – to act strictly in the case of a prohibition stemming from the Torah. According to Rashi, though, we have no need to behave strictly as the rule is that a beis din cannot punish anyone for a doubtful transgression. The witnesses could have been minors when they testified and, as such, can’t be punished if their testimony is revealed as false. A beis din may accept only such witnesses as can be refuted and their testimony is definitely invalid (Hagahos Tzemach Tzedek on Responsa Rabbi Akiva Eiger, 1st edition, 176).

HaGaon Rabbi Akiva Eiger approaches the question from the other direction. Why do we need the verse if we learn the same halachah from Rashi’s reasoning? Indeed, though, not all testimonies proven false are punishable. Someone who testified, for example, that he saw the new moon and was discovered to have lied did not mean to harm anyone physically or financially and goes unpunished. We need the verse, therefore, to exclude minors from testifying in any instance.

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Defiling the Dead and Autopsies

Defiling the Dead
Rabbi Akiva had said that we cannot examine the corpse to determine if he was a minor or an adult at the time of his death, for it will be defiling the dead.

Reb Yosef Engel in Gilyonei HaShas writes that he did not find a source to the prohibition against defiling a corpse. Perhaps, he says, it is from the verse which teaches us that we are not permitted to let a dead man hang on a tree overnight. From there we see that a corpse is supposed to be treated with honor. Any disrespect to the dead will be a violation of this verse.

He also suggests that since there is a positive commandment to bury the dead – if one will be examining the corpse, even while buried, nevertheless, during the defilement it is regarded as if he isn’t buried, and one would be transgressing the positive mitzvah of burial.


Autopsies: How and When?

By: Meoros HaDaf HaYomi

Physicians have always wanted to gain medical and anatomical knowledge from examining the bodies of those who expired from various diseases. We are forbidden to desecrate the departed, but, on the other hand, we want to use any potential medical information to save the lives of the similarly afflicted. All the halachic authorities treating the subject agreed on the clear principle that the Torah forbids preserving any organ from a Jewish body and thus delaying its burial or desecrating a Jewish body in any manner, even by the otherwise usual means of an autopsy to advance medical knowledge or to investigate cause of death. Autopsies are included in learning the medical profession, but the Torah strictly forbids such operations on Jewish bodies. Alternatively, medical information may be gained from autopsies on the cadavers of non-Jews who agreed to such while alive.

A Jew died in a hospital from a certain disease. Another Jew in same ward was diagnosed as terminally ill with the same malaise and the medical staff want to autopsy the body to discover the best way to operate on the lingering patient and, hopefully, save his life. As an introduction to this topic, we cite the Noda BiYehudah who warned that “even gentile doctors perform experiments only by operating on those executed for crimes or on those who agreed to such while alive” (Responsa, 2nd edition, Y.D. 210). In that era, then, every doctor was exceedingly careful about autopsies but, nonetheless, halachic authorities expressed their suspicion that granting permission in some case would invite a wave of desecration and dishonor of the departed. As usual, we do not intend to present the practical halachah, but merely to address current topics. The following discussion therefore does not include all the opinions and their rationale, but is limited to the two major approaches of the leading poskim, and we start with our sugya, which forms a basis for a fundamental difference of opinions.

The great Tanna Rabbi Akiva lived in Bnei Brak and already then the halachah was a guiding beacon for residents of the town. The Gemora recounts that some people asked him to allow them to disinter their relative to ascertain if he was halachically an adult at the time of his death. Some merchants, on the other hand, claimed that he was grown up when he sold them land he had inherited from his father. The halachah is that only a mature adult is considered sufficiently experienced to sell inherited land and the heirs wanted to exhume the deceased to prove that he was not halachically mature at his death. They would then be able to invalidate the sale of the land and claim it for themselves. Rabbi Akiva forbade them to do so, as one must not desecrate the deceased and, moreover, anatomical features are liable to change after death, making it impossible to pinpoint the person’s age. What, though, is Rabbi Akiva’s source for the prohibition on desecrating the deceased? According to Responsa Binyan Tziyon (171), Rabbi Akiva meant that we must never desecrate the dead, as such acts are regarded as robbing them and, if so, we are not allowed to do so even to save a life. Although we must ignore almost all prohibitions to save a life, which is a mitzvah in itself, the dead are exempt from mitzvos and we must not desecrate them, causing them great pain. Moreover, even a person in danger may not save his life by stealing, if he will never be able to return the theft (see Bava Kamma 60b and Rashi and Tosfos ibid) In our case, then, the doctors would be forbidden to autopsy the deceased in an attempt to save the terminally ill patient. Still, the Noda BiYehudah (2nd edition, Y.D. 210) and the Chasam Sofer (Responsa, Y.D. 336) hold that Rabbi Akiva did not forbid making use of the deceased’s remains to save a life. The relatives who came to him, after all, wanted to clarify a matter of property. As for saving lives, though, the prohibition on desecrating the dead is like any other prohibition and must be ignored and “it is almost certain” that there is no transgression involved.

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The famous get delivered at Cleves

If He’s Healthy, He must Produce Evidence that he was Moribund

The famous get delivered at Cleves
Not many divorce cases have earned a special name or deserved to be assiduously detailed in halachic literature. One outstanding case, though, was that of Yitzchak Neierburg and Leah Guntzheusen of Germany, who were divorced very soon after their marriage about 200 years ago, on 8 Elul 5526. The couple wed in Mannheim but the bill of divorce was delivered in Cleves and has been since known as “the Cleve get.”

A divorce enacted at the Dutch border
Immediately after the wedding, the young husband became very introverted and sometimes murmured incomprehensible statements. One the Shabbos of the sheva berachos week, he took the dowry of 94 gold karolen and absconded to a neighboring village and, when discovered, explained that he had to desecrate the Shabbos and flee because “all his limbs trembled and a deathly fear had befallen him.” For some reason, the bride’s family did not yet demand a get. After the next Shabbos, Neierburg was in Bonn where he summoned his wife’s relative, Rabbi Shimon Copenhagen, and told him he was in great danger and had to leave the country immediately. There was no beis din in Bonn, so the wife’s family continued to Cleves, on the Dutch border, as Neierburg intended to flee to England via Holland. HaGaon Rav Yisrael Lifschitz, the rabbi of Cleves and the grandfather of the author of Tiferes Yisrael on the Mishnah, arranged the divorce once the husband insisted that he would be condemned to death unless he fled to England. The couple’s financial matters were then settled and Leah returned home.

The dispute that engulfed the halachic community
On hearing the news, Neierburg’s father became incensed, especially about the financial settlement which he deemed unfavorable to his son. He appealed to the rabbis of Mannheim and Frankfurt-am-Main to disqualify the get, claiming his son was insane and therefore halachically unable to divorce. The rabbis of Frankfurt and Mannheim soon issued a long and elaborately explained decision disqualifying the get and consequently defining Leah as still married. Her family appealed to other leading rabbinical authorities and the stormy discussion echoed throughout the halachic community to the point where every prominent expert voiced his opinion. The replies of some poskim were even publicized, including those of HaGaon Rav Yechezkel Landa, author of Noda’ BiYehudah; HaGaon Rav Aryeh Leib of Metz, the Shaagas Aryeh; HaGaon Rav David, av beis din of Dessau, known for his Korban Ha’Eidah; Rabbi Shlomo Chelma, famous for his Mirkeves HaMishneh on Rambam; Rabbi Elchanan Ashkenazi (Sidrei Tohorah); Rabbi Yitzchak HaLevi of Hamburg; HaGaon Rav Yaakov Emdin; and Rabbi Shaul of Amsterdam.

Why the Frankfurt community was hard put to hire a rav
So many rabbis expressed their opinions that several years later, when the Frankfurt congregation was seeking to appoint a new chief rabbi, the leaders of the community were only willing to consider one who did not disagree with his predecessors and they only found three candidates. The Frankfurt rabbis were the sole ones to still insist that Neierburg had been insane, whereas all the others allowed Leah to remarry. We shall now devote some study to the thought-provoking reply of the author of Shaagas Aryeh, publicized in Responsa Or HaYashar and at the end of his major work (Shaagas Aryeh, addition to #2).

In our sugya Rabbi Nassan states that one who had been moribund but recuperated may renege on the gifts that he distributed on his deathbed, as he was then sure that he was in his last moments and would have no further need for his property. What, though, is the halachah if we are unsure of the state of the person’s health when he distributed the gifts? The Gemora says that we must examine his condition right now. If he’s healthy now, we should assume he was so then but if he’s presently infirm, we assume he was the same then unless one of the sides proves otherwise.

Back to the get at Cleves, then, it had to be ascertained if Neierburg was sane or insane when he gave Leah her get, and, according to our sugya, we should consider his current condition. The Shaagas Aryeh wrote that he detained Neierburg at Metz for three days on his way to London and found him sane, and consequently, in his opinion, the get was valid. (The Shaagas Aryeh included many ideas, profound pilpul and halachic principles that we cannot fully explain here due both to lack of space and their profundity; we have touched on only one of his ideas, related to our sugya, without citing all his supportive proof leading to his final decision). Some record that Neierburg returned to Germany and remarried Leah but others deny the fact.


Is He Alive?
In what type of scenarios do we remain with the assumption that a missing person is still alive? Which circumstance must occur before we assume that a missing person may have died?

The Shulchan Aruch (Even Ha’ezer 141:69) distinguishes between various settings. In cases where the city was;
a) surrounded by an army from the nearby government;
b) a ship floundering at sea;
c) a person that is on his way to be tried in a case where convicted carries the death penalty;
In all these cases, the person in question is considered to have remained alive.

Conversely, in cases where;
a) the city was captured;
b) surrounded by an invading army;
c) a ship that is lost at sea;
d) a convict that is on his way to be executed by non-Jews;
e) when a person was dragged away by a wild animal;
f) a river swept him away;
g) a house collapsed on him;
In all these instances, we cannot safely assume that he assuredly remained alive; therefore we give him the status of both a living and dead person.

This would have strict implications:
a) His wife cannot remarry - for he might be alive.
b) Even if a get was given to an agent to give to his wife, he may not do so - for he might be dead (since one cannot divorce his wife after he is dead). If the agent did give her the get, she would have the status as a safek migureshes.
c) If the missing person is a Kohen, his wife cannot eat terumah - for he might be dead.
d) If the missing person is a Yisroel, but his wife is a daughter of a Kohen, she cannot eat terumah - for he might be alive.

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One Gift to Two People

The Gemora discusses a case where a shechiv mei’ra gave the same gift to two people and both these people were zocheh (a legal acquisition). Rav says that the first person is zocheh, while Shmuel argues that the second one is zocheh. The halachah follows Shmuel (Choshen Mishpat 250:13).

The Rashba (Shu”t Chelek 2 Shaila 293) was asked what to do in a peculiar case. The story was that a father, Yaakov, gave his son Reuven a field as a gift while in complete health (matnas bari), stating that it is Reuven’s “from today and after I die,” which means that the field itself would immediately belong to Reuven, but the “fruits” (the profits) would belong to the father until he died, and only then would it be transferred to Reuven.

Years passed and Yaakov realized he was nearing his end, so he drew up a will dividing his inheritance among his children. Interestingly enough, the very field that was previously given to Reuven, Yaakov stated in his will that it would belong to Shimon. At the end of the will, Yaakov added a clause that if any of the children would contest any part of the will, than he would forfeit his part to the inheritance that he had received. So the question is: who does this field belong to?

The Rashba answered that logic would dictate that Yaakov simply forgot about the gift he gave Reuven years ago, and Shimon should never have received this field, and more importantly we should disregard the clause. However ,since there is a possibility that he did remember and Yaakov decided to give this field to Shimon, this causes a serious problem for Reuven, for although the field is rightfully his, if he opens his mouth, he loses the rest of the inheritance. On the other hand, says the Rashba, Shimon cannot keep the field either, for it clearly belongs to Reuven, since Yaakov cannot take away a matnas bari through any means. Therefore we have reached an impasse; Shimon cannot claim the field because it’s not his, and neither can Reuven, because of the clause. The only way out, concludes the Rashba, is that Reuven’s inheritors can claim the field (once Reuven dies), if in fact Reuven never contested the will. This is because the only thing stopping Reuven was that Yaakov added a clause in the will, which effectively muzzles Reuven’s mouth, but not his inheritors.

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Tefillin; Sefer Torah

Tefillin as a Garb

The Gemora states: Tefillin are called possessions. This is proven from the following Mishna: If someone consecrates his possessions, his tefillin are evaluated (and he redeems the tefillin from hekdesh with money).

The Gemora inquires: What would be regarding a Sefer Torah? Do we say that since it is forbidden to be sold, it is not included in “possessions,” or perhaps, since it may be sold for the study of Torah or to marry a woman, it is regarded as his possession? The Gemora leaves this question unresolved.

The Rashbam explains: Perhaps there is a distinction between a Sefer Torah and tefillin. Since one wears tefillin on his body, perhaps it is considered as part of his garb, and that is why it is regarded as a “possession.”

The Maharsham in his responsa (1:148) was asked regarding someone who took a vow to donate money to clothe the naked; is he allowed to purchase a pair of tefillin for a pauper?

A proof is brought from a Tikunei Zohar, which states that when the Torah states (regarding Adam in the Garden of Eden): And Hashem made for Adam and for his wife shirts of skin, and He dressed them; this is referring to tefillin. This, the Gemora in Sotah (14a) explains to mean that you should go in His ways. Just as He clothes the naked, so too, you should clothe the naked. Accordingly, we can say that buying tefillin for a poor person is regarded as clothing him.

The Maharsham cites our Rashbam as a proof to this as well.

Sefer Torah

The Gemora inquires: What would be regarding a Sefer Torah? Do we say that since it is forbidden to be sold, it is not included in “possessions,” or perhaps, since it may be sold for the study of Torah or to marry a woman, it is regarded as his possession? The Gemora leaves this question unresolved.

The Shulchan Aruch (Yoreh De'ah 270:1) writes that it is a mitzvah for every single man to write a Sefer Torah, even if he had inherited one. One may not sell a Sefer Torah even if he has many Sifrei Torah, and even in order to buy a newer and nicer one. However, one may sell a Sefer Torah in order to learn Torah or to get married, if he has nothing else to sell. The Re”ma adds that one may also sell a Sefer Torah in order to redeem captives.

The Shulchan Aruch in other places adds a few other cases where one may sell a Sefer Torah. Orach Chaim 153:6 states that it would be permitted in order to have money to support the students, and if money is needed to marry off orphans. The Chelkas Michokek (Even Ha'ezer 1:1) writes that this only applies to a yasom (an orphan boy) and not to a yesomah (an orphan girl). However, the Magen Avraham (Orach Chaim ibid) rules that it applies to a yesomah as well. Bais Shmuel and many others including Mishnah Berurah rule as the Magen Avraham.

As for the answer to the Gemora’s inquiry, the Shulchan Aruch (Choshen Mishpat 248:11) rules that the halachah is in doubt whether it is included or not (because the Gemora did not answer the question), and we will only know once Eliyahu Hanavi comes, and he will resolve this question for us. Therefore, if the recipient has already taken the Sefer Torah, the shechiv mei’ra cannot take it back.

This concept is elucidated by the Drishah, with a fascinating halachic distinction. In cases where the Gemora has a teiku and the halachah is not clear due to the logic that can go both ways, and we will only know once Eliyahu Hanavi comes, then, we say that if the other party grabbed it, we cannot take it away from him, since the halachah may very well be in his favor. However, in cases where the Gemora isn't clear what the halachah is due to a question of what an average person had in mind, then we won't know the answer when Eliyahu Hanavi comes, since some people think like this and some like that. Therefore in our case where the question is due to the logic that can equally be heard both ways, and we will know how to rule when Eliyahu Hanavi comes, the halachah is that if the recipient grabbed it, we cannot take it away from him.

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Slaves and Land

Comparing Slaves and Land

The Torah has a hekesh which equates slaves with land. Our Gemora says that although slaves might be considered as land, there are differences between the two stemming from the fact that slaves are movable and land is not. Therefore, our Gemora says that even if people consider slaves like land, they don’t mean to include them is the sale of the city. All real land is included in the sale.

There are other instances where the actual difference between slaves and land causes them to have different halachos as well. Rav Chaim HaLevi quotes a Raavad who differentiates between these two categories. If one steals a slave and the owner gives up hope of retrieving him, the owner loses ownership of him. This is not the case with land. Why should there be a difference? Rav Chaim answers that if giving up hope is related to the ability the Torah gives thief to acquire a stolen object, there would be no difference between the two. Anytime an object is out of the possession of the owner, and the owner has lost hope of retrieval, he relinquishes ownership. It doesn’t matter whether the object was lost or stolen. Therefore what matters is whether the object in reality is out of the owner’s possession. Slaves, which move, can be considered out of the owner’s possession. Land, which is stationary, is always considered in the owner’s possession. Thus, even though there is a halachic comparison between the two categories, sometimes the different properties of each will determine differences in halachah.


Slave - Karka or Mitaltilin

The Gemora inquired: When a shechiv mei’ra gave his movables as a gift, does a non Jewish slave have the status of karka (property, real estate), or movables (lit. movable objects, i.e. possessions that are not property)? Rashbam points out, that for Biblical laws there is no question that they are considered karka, however, here we need to ascertain what the shechiv mei’ra had in mind when he gave a gift of movables - did he mean to include the slave or not.

One of the cases mentioned in Rashbam where a slave has the status of karka is by kinyan. The Shulchan Aruch (Choshen Mishpat 196:1) rules: A slave has the same laws as karka, therefore he can be acquired via money, document or chazakah (he may also be acquired through kinyan suddar and meshicha, ibid). In order to be acquired via chazakah, the slave needs to serve his master, for example - he should tie or untie his shoes; he should carry the masters clothing to the bathhouse or do any of the myriad other chores which he is expected to do once he is officially his slave.

There is a machlokes Rishonim how to rule. The Gemora did not answer this question; therefore, the Rema says that the slave is not included in the gift, since the burden of proof is on the one exacting money from his fellow. The Rif, Rosh and Rambam, however, rule that the slave is included.

The Shulchan Aruch (Choshen Mishpat 248:10) rules that the slave is included.

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Kinyan through Admission

The Gemora in Bava Metzia (46a) struggles to figure out a way how Reuven can transfer his money that he has at home to Shimon, who will then use that money to redeem the ma’aser sheini of Reuven and avoid the additional fifth surcharge.

The Gemora suggests that if Reuven would have land to transfer to Shimon, he could transfer the money “agav” the property. Although Tosfos in Bava Kamma (12a) writes that kinyan agav is only Rabbinical, apparently Tosfos understands that even a Rabbinical kinyan would be sufficient to establish Shimon as an owner of the money to redeem the ma’aser sheini and biblically avoid the additional fifth surcharge.

Tosfos raises a question: Even without a kinyan agav or kinyan chalifin, can’t Reuven very directly transfer to Shimon the money by “admitting” that it actually belongs to Shimon? This is what Rav Ikka asked Rava in our Gemora.

In this question, Tosfos evidently assumes that an admission doesn’t merely allow Beis Din to act as if witnesses testified, but it actually transforms the ownership of the item to belong to Shimon and would be considered Shimon’s money for ma’aser sheini redemption purposes.

The Ketzos HaChoshen (40) answers Tosfos question by establishing a clause in this type of kinyan that it must be done in the presence of witnesses. Therefore, we can easily state that we are dealing with a case where there are no witnesses available to allow the kinyan hoda’ah (admission) to go into effect.

The Ketzos (194:4) has an elaborate discussion where he explains that this type of admitting would serve as a kinyan even for the purpose of transferring chametz that is another place to belong to a gentile. We see from the fact that it works for ma’aser sheini that it not only works for monetary purposes, but even for prohibition purposes, therefore it should work for chametz as well.

However, Tosfos in Bava Kamma (104b) implies that it would not work on a Biblical level and wouldn’t work for ma’aser sheini purposes. Nevertheless, the Ketzos argues that it should still work for chametz since one has nullified the chametz and the requirement to rid himself of the chametz is only Rabbinical. But in truth, the Ketzos points out that even if kinyan hoda’ah is only Rabbinic in origin, it shouldn’t be any worse than kinyan agav which works for ma’aser sheini.

Reb Avi Lebowitz suggests that Tosfos in Bava Kamma doesn’t necessarily contradict the other Tosfos because Tosfos in Bava Kamma is speaking about a case where he is admitting that he owns property by which he will transfer the money through a kinyan agav - to which Tosfos says that it doesn’t work on a Biblical level. But this Tosfos speaks of directly transferring the money through an admission, which would work on a Biblical level.

The rationale for the distinction is that admitting to owning property would require two Rabbinical allowances - one for the kinyan hoda’ah and a second for kinyan agav. A kinyan which is based on a combination of two Rabbinical allowances is weaker and perhaps would not work on a Biblical level.


A Ger Does Not Inherit

The Gemora relates that Issur cohabited with Shmuel’s daughter and only converted once she was pregnant. The child would one day become the great Amora, Rav Mari. Years later, Issur died and his estate was worth a large amount of money. The Gemora deals with how Issur would be able to transfer the money to his son, Rav Mari. The very first of many different ways that the Gemora tried to transfer the money, was via inheritance. But that couldn’t work, since Rav Mari cannot inherit his father.

The Shulchan Aruch (Choshen Mishpat 283:1) rules that although the Torah says that a non-Jew can inherit his father, a convert cannot, since he has the status of a infant that was just born into Klal Yisrael without any Jewish parents. However the Chachamim did allow for him to inherit, for they feared that he would revert to being a non-Jew in order to claim the inheritance.

However in a case where the father is a convert and his child is a non-Jew (i.e. the father converted after the child was born), or even when both the father and son converted, the son does not inherit the father, since the above reason obviously doesn’t apply. Furthermore, even if the father converted before the child was born (but after conception), that son cannot inherit his father, nor can the father inherit him. The reason is that a convert has a newborn status in regard to relation, and only a child that was born and conceived after he converted can be said to be his Jewish son. If, however, the conception was prior to the conversion, then this child cannot be considered his son.

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Gifts of a Shechiv Meira

Gift Paradigm for Shechiv Meira

Rav Nachman says that although a shechiv meira need not perform a formal acquisition to transfer his property to others, he may not accomplish a transfer that has no parallel in normative transfers. Therefore, a shechiv meira may not transfer future usage or fruits of property, since there is no way for a healthy person to accomplish such a transfer.

The Gemora explains that a shechiv meira can transfer a loan due him, either because this can be transferred through inheritance, or because a loan can be transferred in the presence of the three parties – the debtor, creditor, and third party taking over the loan.

Tosfos (148a Shechiv Meira) explains that although one may transfer a debt or use of property via an agav acquisition (as an ancillary to a real estate transfer), that is not considered a normative paradigm on which a shechiv meira’s command can be patterned. A transfer with agav is based on an acquisition of another item, and is not an acquisition of the debt or use per se, and therefore is not a valid paradigm for a shechiv meira, who wishes to transfer the debt or use itself. When the Gemora cites inheritance as a precedent, it is not considering that an acquisition from a healthy person, but rather a paradigm of transfer, analogous to a shechiv meira, who transfers upon death.

Tree vs. Fruits
The Gemora discusses one who gets branches of a tree, when one splits a palm tree and its fruits between two people, or when he gives someone only the palm tree, but retains the fruits. It is unclear what the parameters of the question are, nor the ramifications of the answer.

The Rashbam quotes those who say that the Gemora is discussing a regular sale, and is asking whether the recipient of the fruits receives the branches or not. The Rashbam rejects this explanation, since this chapter does not deal with sales. Such a question should have appeared in the chapter that deals with sales of fruits.

Rather, the Rashbam and Tosfos say the case is a shechiv meira who commanded to distribute a palm tree. The Rashbam says that the palm tree is all the shechiv meira owns, and the ramification of the branch ownership is whether the shechiv meira has retained any property, or given it all away. If he has given the branches to the recipient of the fruits, he has not retained any land, and therefore his gift is a full gift, which he can void if he recovers. If he has kept the branches, he has retained land, and his gift is a partial gift, and is valid even if he recovers.

Tosfos (148a Iba’ya l’hu) disputes this explanation. Tosfos objects that if the ramification is in classifying this as a partial or full gift, the Gemora should have raised this question later, when discussing the topic of what a shechiv meira leaves over. Furthermore, this ramification may not be relevant for classifying a partial or full gift. The Gemora cites an opinion that the property left over may be movable. In that case, when the shechiv meira retained the fruit, it is a partial gift whether he retained the branches or not. The Gemora also cites an opinion that the property left over must be enough to support the shechiv meira. In that case, even the branches will not make the gift partial.

Rather, Tosfos says the question is based on the statement of Rav Nachman (147b) that a shechiv meira cannot give someone fruits from a tree, since there is nothing tangible and existent to transfer. The Gemora therefore asks whether giving the fruits includes the branches, which will make the gift effective, or does not include the branches, and therefore is not effective. Similarly, the Gemora asks whether a shechiv meira’s retention of the fruits includes the branches, and therefore is effective, or does not include the branches, and therefore is not effective.


Shechiv Meira
A shechiv meira is a person that is deathly ill and might not recover. If he would give away any of his possessions, they are automatically acquired by the receiver of his gift as soon as he dies, even without making any formal kinyan (Choshen Mishpat 250:1). The reason being, since the health of the shechiv meira is precarious, we don’t want to cause him unease (that he might die before the person formally made a kinyan to receive his gift, and his inheritors might not honor his wishes to give away this gift) which would adversely affect his health.

The gift does take effect until the shechiv meira dies, for if he gets better, then he probably would want back his money.

How sick does one have to be in order to be considered a shechiv meira? The Shulchan Aruch (Choshen Mishpat 250:5) quotes Rambam that the litmus test is if his entire body is so devoid of strength that he can’t get out of bed.

We learned in the Mishna (146b) that a shechiv meira that gave away all his possessions and did not exclude anything, his gift is not valid if he recovers. Our Gemora has a question regarding a shechiv meira that did not exclude anything and gave everything to hekdesh, and then recovered. The Gemora similarly asks in cases of hefker and tzedakah. The Gemora does not resolve these questions.

There is a dispute amongst the Rishonim whether the shechiv meira that recovered may keep his money or not. Rambam and Rimah hold that he can, and does not have to give it to hekdesh, hefker or tzedakah, while the Rosh, Tur and Mordechai argue that his gift was valid.

The halachah is that the gift is not valid if the shechiv meira recovered (Choshen Mishpat 250:3).

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Bava Basra 147

Being Moichel a Shtar Chov that was Previously Sold

The Gemora states that a lender who sold a shtar chov (a document stating that the borrower owes x amount of money to the lender) to a third party, which would mean that the borrower would have to repay the loan to the third party, and then the lender forgives the payment (in the Gemora’s vernacular - he was moichel the shtar), it is valid and the borrower does not have to pay back the loan to neither the lender, nor the third party. The rationale for this halachah varies, and there are many halachos that pertain to this complex concept. We will discuss a few of them.

For starters let’s understand the problem. Of all the various types of sales that we have learned about, this is the only one that is seemingly not final. This means that although the sale of this shtar was completely valid, and the previous owner should have absolutely no say in the matter at all, he can easily cause the third party to hold a worthless piece of paper by being moichel the shtar. Furthermore, the lender’s mechilah can take effect even if the third party bought the shtar on the condition that the lender would not be moichel it! Another issue is that even an inheritor can be moichel. How does the lender have such broad powers?

Before we answer these questions, it is important to note that the third party is remunerated. Although logically he cannot collect the money from the borrower via this shtar, the lender must reimburse the third party because of the concept of dina di’garmi, which basically means that a person that inadvertently harmed someone has to pay his damages.

There is a machlokes in the Rishonim if the ability to sell a shtar is of Biblical origin or merely a Rabbinic enactment. The Rif and Rambam hold that it’s a Rabbinic enactment, while Rabbeinu Tam maintains that it is Biblical.

The Drishah (Choshen Mishpat 66:23) explains that according to the Rishonim that hold it’s Rabbinical, the rationale why the lender is able to forgive the payment even though he had already sold the shtar, is because the shtar is not intrinsically valuable. All other types of sales revolve around an item which has monetary value, as opposed to a shtar chov, which is only worth money in theory. Therefore the sale was never Biblically valid, and can be accepted by the Rabbis according to their terms.

Rabbeinu Tam, however, holds that the ability to sell a shtar chov is recognized by the Torah. If so, a shtar should be no different than any other sale where the previous owner is completely cut off from the item?

The Ran explains that in fact there is a huge difference. When Reuven borrowed from Shimon, two things take place: 1) A shibud haguf - the onus is placed on Reuven to repay Shimon. 2) A shibud nichasim - an onus is placed on Reuven’s money to repay the loan, which means that if Reuven doesn’t repay the loan, then his money serves as a guarantor. A shibud haguf cannot be sold, since Reuven’s shibud is exclusively to Shimon. On the other hand, a shibud nichasim can be sold, which would mean that Reuven’s money is paid to the third party, since this shibud is to repay the loan and not necessarily to the person who lent it.

Now let’s work this out logically. Since; a) the shibud haguf never left the lender, and b) the shibud nichasim is only in place if the borrower defaults on his loan, or in other words - if there would not be a shibud haguf, then there wouldn’t be a shibud nichasim, then we must come to the conclusion that if the lender is moichel the shibud haguf, then the borrower does not have to repay the loan to either of them.

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Divorce in the Back of His Mind

The Gemora relates a story about a man that was told that his wife can't smell. Rashbam quotes a Gemora in Kesuvos regarding a man that was mekadesh a woman on the assumption that she has no mum (blemishes, or deficiencies) and finds out once they are married that she does, he can claim that it is a mekach ta’us (a mistaken purchase) and she leaves the marriage without a kesuvah. This only applies to a mum that is hidden (i.e. it was not noticeable before they got engaged), for example, she can’t smell. The Gemora continues: The man decides to test her. He takes her into a secluded place and hidden in his pocket is a radish. He remarks to her that he smells radishes from nearby Galilee. The point of this was to test her response, and from that he’ll be able to discern if she could really smell or not. His wife immediately understood what this whole charade was about, and jokingly replied that she can smell the dates (which in those days was eaten together with radishes). The man realized that she can smell after all, and was about to apologize, but calamity struck and the room that they were in collapsed on her, and she died.

The question is: Can the husband inherit his wife’s property? The Gemora rules that “since he only went into the secluded place to test her, he may not inherit her property.” The Rashbam explains that since the husband tested her to see if she can smell, and although she was able to, in the back of the husband’s mind, he was about to divorce her if she had a mum. Therefore the status of imminent divorce stays, until he clearly has no intention of divorcing her. The Rashbam logically applies this to any case where the husband had an argument with his wife and has in mind to divorce her, if she dies when he is still in that mindset, then he cannot inherit her. He brings proof from a Gemora in Gittin which states that once a husband intends to divorce his wife, as long as he still has that mindset, he cannot continue to eat her fruits (a husband has a right to eat the fruits of his wife’s field or property).

Tosfos explains that the Gemora is talking about a man that was not married to the woman, rather he was engaged. Understandably, the Rashbam’s premise that a husband loses his right to inherit his wife if she died while he had in mind to divorce her, has no basis from this Gemora. Tosfos also disproves the Rashbam’s proof from the Gemora in Gittin.

The Rema (Even Ha’ezer Siman 90 Seif 5) rules that as long as a man did not actually divorce his wife, even if he intended to do so, he inherits her property. This is the opinion of Tosfos.

There is a rule in the halachos of mourning that we go after the lenient opinion. Therefore although we don’t follow the opinion of the Rashbam in regards to inheritance, there are Poskim (Chochmas Shlomo cites Yam Shel Shlomo, Pischei Tshuva cites a Yeshous Yaakov that records that this was the Maharal’s view), that maintain in the above scenario, where the husband had in mind to divorce his wife, he is not considered a mourner.

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Bava Basra 145

Why the Kiddushin Money is Irretrievable

The Gemora cites a dispute whether kiddushin money is irretrievable or not (does a man, when giving money to betroth a woman, resolve in his mind that he is prepared to forfeit the money if this will not result in a nisuin). Rabbi Nassan holds that the kiddushin money is not irretrievable (and it must be returned), and Rabbi Yehudah HaNasi holds that the kiddushin money is irretrievable (and it does not need to be returned).

What is the explanation of the Tanna that holds that the kiddushin money is irretrievable?

The Ritva writes that the man gives the money to the woman on the condition that it should be returned to him if she would die before the nisuin. He adds that this stipulation is only with respect to the kiddushin money more than the value of a perutah, for if the entire kiddushin money was included in this condition (and everything must be returned), it would emerge that they were retroactively never married, and why would it be necessary to give a get (in a case where she retracted prior to the nisuin)! If she would commit adultery, why would she be put to death? It would be a case of a hasra’as safek -- “an uncertain warning,” for if the kiddushin does not result in a nisuin, it would emerge that the man never gave her any money, there was never any kiddushin!

The Rashba disagrees and proves from a Gemora later that all the kiddushin money is returned. And although all the money is returned, the kiddushin is nevertheless valid through the benefit that she received by being able to use the money until she would be required to return it.


What should I Learn?

By: Reb Avraham Klein

The Gemora discusses different types of Torah scholars. There are those that excel in Mishna, some in Aggadah, others in Pilpul, some in Halachah, while there are yet others whose field of expertise is Gemora. They are all part of Torah, and each contributes its part to Torah learning. Although there is a mitzvah of Yedias Hatorah (to know as much Torah as possible), there are halachos in what is imperative to learn.

The Shulchan Aruch (Yoreh De'ah Siman 246 Seif 1) writes that every single Jew is obligated to learn Torah; it makes no difference if he’s rich or poor, healthy or ill, young or old, even if he’s preoccupied with earning a living and taking care of his family, everyone is obligated to set aside time to learn - by day and by night. If it is absolutely impossible for him to learn, either due to the fact that he has no idea how to learn anything, or he is simply extremely busy without even a moment to learn, then he should pay others to learn.

There is an opinion in halachah (ibid Seif 4) that when one is starting to learn Torah (i.e. in his younger years) he should split his learning time into thirds: the first third he should study Tanach, the second - Mishna, and the third - Gemora, and when he gets older, he should just learn Gemora while routinely reviewing Tanach and Mishna. However the Rema rules that Talmud Bavli is considered a mixture of all three, and therefore, if one focused all his energies in Gemora, he has fulfilled his obligation to study Tanach and Mishna as well. The Rema continues that “all one needs to learn is Tanach, Mishna, Gemora and the Halachos that are derived from them, and through this, he will acquire this world and the next.”

The Shach and Taz quote Drishah that notes that there are baalei batim (laymen - people who work and have less time to study Torah) who learn Gemora without halachah. He rules that they must also learn halachah. He bases his ruling from the famous Gemora which states: Whoever learns two halachos a day is guaranteed a portion in the World to Come. Rashi explains that to halachah means halachah lima’aseh (practical rulings; there are instances when the Gemora uses the word halachah, and it translates as Gemora). So although the Rema says that it is sufficient to learn Gemora, that is only for those who learn most of the day, but baalei batim that learn considerably less, must also learn halachah.

In regard to Kabbalah and other esoteric studies, the Shach rules that one should not start learning them before he is 40, since it requires a high level of holiness and purity. Pischei Tshuvah argues and cites Chavos Yair who recommends that one should altogether distance himself from learning these areas of Torah.

Mishna Berurah (Siman 290 Seif Katan 3) writes that it is written in the Zohar that a person should come up with a novel interpretation in Torah on Shabbos, and for those that can’t, they should learn an area of Torah that they never learned before.

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Bundle Up

The Gemora states that catching a cold or heat related illness is considered a negligent illness. The Gemora teaches us that “everything is in the hands of heaven except for heat and cold.”

Tosfos explain that all mishaps and occurrences that happen (in contrast to misfortunes that we actively bring to ourselves, for example jumping into a raging ocean) in our life, is not a random act attributed to queer and meaningless fate. Rather, everything that occurs in our lives, whether big or small, is directly caused by G-d. There is one exception to this Law of Occurrences - illnesses that are caused by heat or cold. This is exclusively in man's department.

There is an interesting difference between the two. The Shulchan Aruch (Orach Chaim Siman 276 Seif 5) rules that in cold places, it is permitted to tell a non-Jew on Shabbos to make a fire (or in today’s vernacular - turn on the heater) for the little children (because for them, it’s cold, even in weather where the adults are comfortable). Once there is a fire, everyone is allowed to benefit from it. However, the Taz and others add that one may not sit close to the fire out of concern that one might momentarily forget and make the fire larger. In a place where it’s extremely cold, one may tell a non-Jew to light a fire (even for adults). The reason for this is, as the Shulchan Aruch puts it, “Everyone is considered ill in regard to the cold.” The ill here refers to the category of “an ill person that is not in danger,” and therefore, we are not allowed to make a fire, but a non-Jew can, because a non-Jew may be specifically asked to perform forbidden labor when there is an ill person, without the hints that usually must accompany an “Amirah Li’akum” (telling a non-Jew to do a melachah on Shabbos).

Similarly, in a case where the air conditioner is on, and it is very cold, one may ask a non-Jew to turn it off. However, if it is very hot, there is no such concept of “Everyone is considered ill in regard to heat.” Although some (Minchas Yitzchak and others) permit to ask a non-Jew to turn on an air conditioner for different reasons, Reb Moishe Feinstein forbade it (Igros Moshe Yoreh De'ah Chelek 3 Shaila 47 Ois 2).

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Bava Basra 143

Rabbi Meir’s Text

The Torah says that “all the souls of the House of Yaakov coming to Egypt were 70” (Bereishis 46:27), but the Midrash says that if we count them, we find only 69 (Bereishis Rabah, 94:9). The Torah, though, reckons 70 because Yocheved was born at the gates of Egypt, and by the time the Israelites passed through the walls, they numbered 70. Alternatively, Chushim is counted as two since he would eventually beget many offspring, as the Torah says: “…the sons of Dan: Chushim” (see Tosfos, s.v. Shehayu). Still, the Midrash adds that Rabbi Meir had a sefer Torah whose text read “the son of Dan: Chushim”; this statement is altogether perplexing.

According to the commentary Avnei Shoham (on Bereishis 46:23), the above two explanations depend on the difference of opinions as to if a fetus is regarded as a limb of its mother, or is the unborn child a separate entity. If like the latter, we can count Yocheved separately and include her in the total of 70. If a fetus is a part of its mother’s body, we cannot count Yocheved and must rather count Chushim as two. Rabbi Meir holds that a fetus is not part of its mother’s body. He therefore reckoned Yocheved as an individual, though she had not yet been born as they approached Egypt, and his sefer Torah said “the son of Dan…,” counting Chushim as only one.

Is a Disqualified Esrog always Inferior?

by: Meoros HaDaf HaYomi

The owner of an esrog orchard separated the required terumah and tithes, including ma’aser rishon which he gave to a Levite. The latter was glad to get such a large amount of esrogim and thought he would find at least one of them to be a choice specimen for the mitzvah of arba’ah minim. After a thorough search, however, he discovered that all the fruit were unfit for the mitzvah and he came to the owner of the orchard in resentment. “You took great care to separate ma’aser rishon,” he asserted, “but you separated inferior fruit from the superior – esrogim unfit for their mitzvah as ma’aser for those kosher for their mitzvah – and the Gemora says that someone who uses bad fruit to separate the required gifts for good fruit is a sinner.” The owner of the orchard asked Rav Yitzchak Silberstein to decide the question and the latter referred him to his brother-in-law HaGaon Rav Chayim Kanievski. Rav Kanievski ruled that the ma’aser had been properly separated as “good” and “bad” refer only to the fruit’s edibility. In that sense one should prefer using a big, ripe esrog for tithing rather than an esrog considered choice for its mitzvah, even if the former is disqualified for the mitzvah of arba’ah minim.


"My Dear Sons" - Who is Included?

By: Reb Avraham Klein

A father of five is overseas on a business trip, and decides to send his children a present. He shops around for a nice gift for his beloved children, and sends it off with UPS. The next day his children receive the package, tear off the wrapping paper, and out comes a note from their father. “My dear sons, just a little present from Daddy. I miss you tons! Love, Daddy.” The children are nonplussed. “Sons”? asked Rachel. “We only have one brother.” The four sisters as one stare at Chaim. “What is the meaning of this, Chaim?” they ask the bewildered young man.

We learned that when a father calls his children - sons, he means to include his daughters as well. That doesn’t mean that the four sisters in the above story will automatically get their present. First we have to analyze a number of factors. a) The type of gift. b) Are the children married? The son? The daughters? c) What would be the halachah if the father didn’t write sons, rather just wrote, “A present from Daddy” without specifying any of his children? d) What would the halachah have to say in the same exact story, but with one difference? Instead of on an overseas trip, the father is deathly ill!?

A) The Shulchan Aruch (Choshen Mishpat Siman 247 Seif 1) rules that both the sons and daughters receive the gift, only when the presents clearly indicate that some are for boys (walkie talkie) and some are for girls (dollhouse). However, if it can be used by both the sons and daughters (for example, money), then, only the son would get it. The rationale (as explained by the Kessef Mishnah and Aruch Hashulchan) is that the father does normally refer to his daughters by calling them “my sons,” and therefore, she receives a gift too when it is obviously meant for her. But if the present can be for both, logic dictates that “sons” means sons - even if there is only one son.

B) All of this is true whether the sons and daughters are both not married, only the sons are married or only the daughters are married (S’ma). There is a dispute in a case where they are both married. S’ma rules that the daughters-in-law receive the gift, but not the daughters. K’tzos cites the Bach that the daughters are the ones that receive the gift, and not the daughters-in-law.

C) In a case where the father didn’t specify “sons,” the Mechaber records two opinions. 1) If it’s a type of gift that is clearly meant for his daughters, then they receive it, and if they are married, then the daughters in law get it. This is true even according to the Bach, because the daughters-in-law are part of his household. 2) If the father has a wife, then she is the one that receives the gift, and not the daughters. But in the above case where the father wrote “sons,” she is obviously not included.

D) Regarding a deathly ill person that wrote “my sons,” his daughters are not included, even if the present is clearly for them. The reason is, that when it comes to a deathly ill person, he is essentially dividing his inheritance, and there we assume his language is following the Torah’s directive that the daughters do not inherit when there is a son.

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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.

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Support in Kollel; Kaddish; Yahrtzeit

Is Support Tzedakah?

The Gemora discusses the obligation for one to support his sons and/or daughters.

The Shulchan Aruch (E”H 71:1) rules that one is obligated to support his children, but only up to the age of six. Beyond that age, the Sages instituted that he support them, but the court has no power to force him to do so.

The Shulchan Aruch (YD 253:3) rules that supporting one’s children is a form of tzedakah, based on the Gemora (Kesuvos 50a) that explains the verse extolling one who is oseh tzedakah b’chol ais – does tzedakah at all times, as referring to one who supports his young children.

The Shach (4) explains that this refers to children above the age of six, whom the father has no enforceable obligation to support.

The Poskim discuss whether one may therefore use money set aside as ma’aser for supporting his children.

The Taz (YD 249:1), echoing the Rama, says that ma’aser is meant exclusively for the poor, and supporting one’s children is like any other monetary obligation, which may not be fulfilled with ma’aser money.

The Shach (YD 249:3) disagrees, based on the Maharam miRutenburg, citing the Gemora in Kesuvos, which refers to supporting one’s older children as a form of tzedakah.

The Igros Moshe (YD 1:143) states that the obligation to support one’s wife includes an obligation to support her children, as long as they live with him. Such an obligation is like any other monetary obligation, which may not be fulfilled with ma’aser money. The Igros Moshe says that even the Shach only meant to include children who are of an age to earn their own living and live on their own, but would agree that one’s support for children living at home may not come from ma’aser money.

The Yechave Da’as (3:76) rules that one may take ma’aser money to support children above the age of six, and rejects the Igros Moshe’s assumption that support of one’s wife includes an obligation to support her children. Further, he rules that one may use ma’aser money for any form of support – including providing food, furnishing an apartment for a new couple, and supporting children learning Torah pre and post marriage. He recommends that one stipulate before earning money that he will use the ma’aser to provide such support, as some Poskim allow such a stipulation to allow use of ma’aser for other purposes. He adds that although the Rabbinate of Israel instituted a rule to force parents to support their children until the age of fifteen, this is simply giving more power to the institution of the Sages, but does not change the nature of such support from the status of tzedakah.

A Daughter First
is a Good Sign for Sons

by: Meoros HaDaf HaYomi

The Maharsha explains that a firstborn daughter prevents any discord that would arise between the sons if one of them were a firstborn, as now all of them inherit equal portions. If, however, a father leaves a firstborn son after him, he gets a double portion and his brothers become jealous. “A daughter first” is therefore a good sign that peace will reign among her brothers.

Others explain that a big sister will care for her brothers willingly and energetically, as she knows that “most sons are like their mother’s brothers.” In other words, when she is ready to marry, people will inquire after her brothers and she therefore has a good reason to help them grow up properly (Peninei Kedem).

Who Supports Whom?

Rabbi Eliezer Gordon eventually became the Rosh Yeshivah at Telz and one of the leading Torah figures of his generation, but after his marriage, he was supported by his father-in-law, who was a rabbi and a great scholar, but exceedingly poor. Still, despite his indigence, he contributed to his son-in-law’s welfare and, moreover, prevented him from responding to any of the many offers tempting him to serve as rabbi in various communities. Witnessing their sorry plight, his wife often tried to convince him to allow their renowned son-in-law to become an officiating rabbi, if only to keep him from resorting to their support. Nonetheless, he refused and once even rebuked her, saying, “Who knows who’s supporting whom?” Eventually, though, his wife prevailed upon him so unrelentingly that he had to agree that Rabbi Gordon should accept the next offer. Such an opportunity soon came and Rabbi Eliezer and his family packed their belongings and moved to another town. The same day the father-in-law suddenly collapsed and passed away. Those who attended the funeral and knew the family echoed his remark: “Who knows who’s supporting whom?”

Those who Learned Mishnayos for their own Departed Souls

Our Gemora highly praises anyone who leaves a son to inherit his estate. A previous Gemora, on 116a, applies the verse “…cry for the one who goes” (Yirmyahu 22:10) to a person who fails to leave a son after him. The Gemora in Sanhedrin explains that sons increase their fathers’ merits and the halachah accordingly stresses the importance of a son’s saying kaddish for his father (Remo in Shulchan ‘Aruch, Y.D. 376:4; Responsa Binyamin Ze’ev, 51).

A Father who Told his Son to Say Kaddish for 12 Months

To be careful for his father’s honor, a son stops saying kaddish for him 11 months after his demise; saying kaddish for the full year of mourning would suggest the father was a rasha, as only the evil stay in Gehinnom for 12 months (Remo, ibid).

Halachic authorities have discussed the question of a son, whose father commanded him to say kaddish for a full year.

HaGaon Rav Shlomo Kluger zt”l commanded his son to do so and the latter asked Rabbi Yitzchak Shmelkes of Lvov, author of Beis Yitzchak, as to how to behave, fearing that such an act would disgrace his father.

The Beis Yitzchak (II, 157) ruled that he should say kaddish for a full year to obey his father, as that would be the best way of honoring him (see ibid as to the halachah concerning the thirteenth month in a leap year).

Hiring a Person to Say Kaddish

If the deceased had no son, some relative should say the kaddish according to the following order of preference: the deceased’s sons’ sons, his daughters’ sons, his father, his brothers and other relatives. In the absence of any relative, a person should be hired to say kaddish for the elevation of his soul and according to the Kaf HaChayim (55:30), the person hired should say before any prayer that the kaddeishim he is about to say are for the elevation of the soul of So-and-so.

May a Daughter Say Kaddish?

Several halachic authorities ruled that if the deceased had no son, his daughter should say kaddish in a minyan at her home, and some even had the custom that if the daughter was very small, she would say kaddish in a synagogue. Still, almost all the Poskim hold that daughters must not say kaddish even at home, and if she wants to increase her father’s merits, she should answer amen after the sheliach tzibur (Penei Baruch: Aveilus BaHalachah, 34:20, in the name of Shevus Ya’akov, etc., and see S.K. 36).

Why Rav Auerbach Said Kaddish for Rabbi Shlomo Kluger’s Granddaughter

HaGaon Rav Shlomoh Zalman Auerbach zt”l used to say kaddish for his relatives who had no one else to say it, and also for a woman called Shasha Mindel bas Rav Chayim Yehudah on her yahrzeit, 24 Nisan.

Shasha Mindel was not his relative and no one paid him to honor her yahrzeit. She was the granddaughter of HaGaon Rav Shlomo Kluger, who lost her father as a girl and was brought up by her grandfather; she passed away many years before Rav Auerbach was born. She suffered much during her short life and had no children.

Rav Kluger dedicated his Nidrei Zeiruzin, on tractate Nedarim, to her memory and in his preface he describes her short life and appeals to any reader to “mention her soul on the anniversary of her demise… He who is not thus dishonored should say kaddish for her… and he who thinks he is thus dishonored should pay a worthy poor person a small amount to say kaddish for her and this will be a true kindness done for the deceased and for me and their reward from Heaven will be double.” As one who learnt Rav Kluger’s works, Rav Auerbach obeyed his request despite the long time since her demise (Halichos Shlomo, Ch. 18, note 78).

Nine Years and One Son-in-Law

Immigrants from Russia recount that Jews in the communist era used to maintain groups for learning mishnayos in the remaining synagogues. The special feature of these groups, however, was that the members learnt mishnayos for the merit of their own souls as in the bitter reality of the Soviet regime, they could not rely on their sons to remember them in any way. A member of one group learnt mishnayos for himself for nine years before he passed away. His daughter eventually emigrated to Eretz Yisroel and wed a Torah scholar, who began to learn mishnayos in his father-in-law’s memory. When? Exactly nine years after his father-in-law’s demise!


Does a Father have to Support his Son in Kollel?

By: Reb Avraham Klein

The Gemora cites Rabbi Meir that says: It is a mitzvah for a person to support his daughters and certainly his sons that learn Torah. This Gemora appears in Maseches Kesubos (49a) as well, and there ,the Gemora infers that it is a mitzvah, but not a chovah (obligation).

At what age is Rabbi Meir referring to? What about the sons that don’t learn Torah?

There are three categories:

1) Children under six years old: Their father is obligated to support them, even if the children have money (one of the only ways that money would be theirs and not automatically belonging to their father is if it was from an inheritance), and even if their mother died. (Shulchan Aruch Even Ha’ezer Siman 71 Sief 1)

2) Children aged six to Bar/Bas Mitzva: Chazal instituted that their father should support them if they don’t have money, even if he himself is not wealthy. If he chooses not to, we scream at him and shame him. If this doesn’t work, then we take even more drastic measures: We publicly announce that this person is a callous cold-hearted man that refuses to support his own children. However, we can’t actually force him to support them. In a case where the father is wealthy and can easily afford to support his children and he doesn’t, then we forcibly take away money from him to support them (ibid).

3) Children that are over the age of Bar/Bas Mitzva (gadlus): The father is obligated to support them like any other poor person (Shulchan Aruch Yoreh De’ah Siman 151 Sief 4).

The Bais Shmuel (in Even Ha’ezer ibid) explains that the father’s obligation to these children is equivalent to any other of his relatives. However, regarding the children under gadlus, the father has a greater obligation towards them than he has to other relatives.

A father that gives money to his children who he is not obligated to support, so that they can learn Torah, that money is considered tzedakah (and can be deducted from his ma’aser). Furthermore, he must support them before any other tzedakah. This is true for any relative that learns Torah, not just a son (ibid Sief 3).

There are many other halachos regarding tzedakah and ma’aser that was not mentioned here. One should always ask a competent Posek in this or any other area of halachha. There are many halachos about the order of tzedakah, how much to give, who should one not give to, etc.

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Twins, Mathematics and Widow

Unexpected Birth of Twins

by: Meoros HaDaf HaYomi

Our Mishna concerns a person who wants to distribute his estate before his demise. According to Rashbam (s.v. Haomer im), he could be healthy and just wants to grant his future child a certain portion through the offices of a third party or he could be moribund (shechiv mera) and not be expecting to witness his child’s birth, in which case we must obey his wish as it is a mitzvah to execute such a person’s orders. At any rate, the person in question commanded that if his wife bears a son, he gets a maneh (100 zuz) from the estate and if she bears a daughter, the daughter should receive 200 zuz. The Mishna then adds that if she bears “a male and a female,” the son gets a maneh and the daughter 200 zuz.

The Rosh assumes that the Mishna means that she bore twins (Responsa of the Rosh, Kelal 81:2). Rashbam disagrees (s.v. Hachi garsinan im zachar; see Maharsha) and explains that the Mishna merely means that the father expressed both eventualities, but does not discuss the birth of twins. The halachah was ruled according to the Rosh (Shulchan ‘Aruch, C.M. 253:27) and the poskim discuss more questions arising from the unexpected birth of twins.

A Question of Mathematics

About 700 years ago a person commanded just before his demise that if his wife bore a son, he should get two thirds of his estate while the rest should be given to his brothers – the child’s uncles, whereas if she bore a daughter, the daughter should receive one third with the rest going to his brothers. The widow bore twins, a son and a daughter, and the question arose as to how to apportion the estate. If we succeed in understanding the father’s intention, we must divide the estate into sevenths. The son gets four sevenths, the uncles two sevenths altogether and the daughter one seventh. The father, after all, apparently wanted to leave his son twice as much as the uncles – originally giving him two thirds as opposed to one third for the uncles – and the uncles twice as much as his daughter, originally giving her one third and the uncles two thirds. We have no choice, then, but to apportion one seventh to the daughter, two sevenths to the uncles and four sevenths to the son.

This hypothetical solution was suggested to the Rosh (ibid), who ordered the whole estate to be given to the son as the father made no mention of twins! The Rosh assumes that when the father commanded “if my wife bears a son [or daughter],” he meant only a son or only a daughter and the birth of twins therefore invalidates the father’s condition. The son inherits the entire estate as a daughter does not inherit if there is a son and the halachah was ruled accordingly (Shulchan ‘Aruch, ibid, 253:28).

Donating 18 rotel for Lag BaOmer

A certain childless person recently vowed that if his wife would bear a child, he would donate 18 rotel of wine or liquor to be distributed at the tomb of Rabbi Shimon bar Yochai in Meiron on Lag BaOmer. Such donations have long been customary as a segula to merit Heavenly favor and are meant to provide sustenance and merrymaking for the many thousands visiting the tomb on that day. A rotel, approximately three liters, was a common measure in the Ottoman era and persists among the descendants of families that settled in Eretz Yisroel centuries ago.

Within a year the person’s wife bore twins and some insisted that he must donate 36 rotel for the double kindness. In fact, however, he had only to give 18, as that was how much he vowed.


Widow vs. Daughter

The Gemora discusses an aspect in the inheritance not mentioned in the Mishna - the widow. Where does she fit into all of this? Would it make a difference if there is a small amount of money or a large amount? Does the money that supports the widow detract from the sons’ portion?

The Shulchan Aruch (Even Ha'ezer Siman 93 Sief 4) has different opinions in a case where there is a widow and daughters, and there isn’t enough to support both the widow and the daughters. The Mechaber is of the opinion that the widow gets supported and the daughters go collecting and of course, the sons too (Bais Shmuel quoting Ran). However the Mechaber cites another opinion (Tosfos) that differentiates between cases where there is a widow and son or daughter, and cases where there is a widow and son and daughter. It is important to note that the widow getting supported is a takanah (rabbinical enactment), while inheritance is m’doiraisa (biblical commandment).

Widow and son or daughter: The child inherits the money and the widow and child support themselves with that. Even if the daughter would get married (and the money belongs to her husband) and even if the married daughter dies, the widow still gets supported from that money.

Widow and son and daughter: In a case of a small inheritance we learned in the previous Mishna that the daughters get supported and the sons go begging. That is a takanah for the daughters that they get supported and not the sons. Therefore in a case where there is not enough money to support both the sons and the daughters, and there is a widow involved, and her getting supported is also a takanah, the problem arises which takanah is stronger? The answer is - the widow’s. She alone gets supported until she collects her kesuvah.

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What Is Included In Mezonos?

When a man dies and is survived by sons and daughters, there is a system in place to ensure that the daughters (who don’t inherit when there are sons) are supported. The Mishna has two scenarios; a) the inheritance is a large amount - there is enough money to support all the children until they reach maturity (12 and a half years for a girl and 13 years for a boy) or until the daughters get engaged (whichever is first); b) the inheritance is a small amount - the money is insufficient to support all the children until maturity.

In the first scenario, the sons inherit and support their sisters. In the second scenario, the daughters get supported from the inheritance, and the sons go begging from the community.

Shulchan Aruch (Even Ha’ezer Siman 112 Seif 11) explains that this is only when there is no money left over after supporting the daughters; however, even in the second scenario, if there is money left over after the daughters are supported, then, that goes to the sons.

The question that needs to be addressed is: What constitutes support? The Mishna uses the term “mezonos,” which usually translates as food. Is this the meaning here as well? What about clothing? How about a place to live?

The Shulchan Aruch (Even Ha’ezer Siman 112 Seif 6) rules that the daughter gets food, clothing and a place to live. This is the opinion of the Tur and the Rambam (Hil. Ishus Perek 19 Hal. 11).

The Rashbam on our Mishna defines mezonos as food and parnasas nisu’in - money for her marriage needs.

Tosfos argues that the term mezonos and parnasah are two separate categories. The former refers to food and drink, and the latter to clothing and marriage needs.

It is interesting to note that according to Tosfos, the daughters would only get food, and not clothing, not like the Rambam and Tur who rule that they get both.

The Chelkas Mechokek rules that the daughters get food, clothing and a place to live; however, they don’t get money towards their marriage needs.

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Only Son - Is he a Bechor?

No Path?

The Sages say that if one sells a house, he retains his pit, and a pathway, while if he sells his pit, the buyer must buy access rights. Rabbi Akiva says that if one sells a house, he retains his pit, but not access rights, while if he sells his pit, the buyer gets access rights. The Reshash says that even when one does not get access rights, this simply means that he does not own a path four amos wide to his pit. However, he does have a narrow path to his pit.

The Yad Ramah asks what the buyer of a pit bought according to the Sages, if he does not have access rights. The Yad Ramah says that all the buyer bought was the right to be a bar matzra – a neighbor, with first rights to purchase adjoining land.

The Reshash is inconsistent with this Yad Ramah, since according to the Reshash, the buyer does have access to his pit, albeit in a less comfortable manner.

Does an only Son have
Firstborn Rights?

By: Meoros HaDaf HaYomi

In his Devar Avraham (I,27), the Rabbi of Kovno, Rabbi A.D. Kahana-Shapira zt”l raises the question as to if an only son, without brothers, is regarded as a firstborn. In other words, when he inherits his father’s estate, does he do so just as an ordinary son or does he inherit half the estate as an ordinary son and the other half as a firstborn? And if you ask, “What’s the difference? He gets it all anyway!,” the following case shows that this seemingly theoretic inquiry has practical implications.

There used to be a custom to give a daughter a shtar chatzi zachar, a document granting her a portion of her father’s estate equal to half that of a son’s. If a father had, for instance, three sons and a daughter, all the children together would be considered as 3.5 sons and the daughter would get a seventh of the estate in conformity with her status as a chatzi zachar – “half a male.” If, though, he had only one son and a daughter, how much should she get? If the son is not defined as a firstborn, he and his sister are together regarded as 1.5 sons and she receives a third of the estate. If, however, he is also considered a firstborn, he inherits two portions, one as an ordinary son and one as a firstborn: the father is then regarded as having 2.5 sons and the daughter gets only a fifth of the estate.

The question occupied the attention of many halachic authorities, as attested by HaGaon Rav Y.S. Natanson, author of Shoel Umeshiv (Responsa, 1st edition, 123): “HaGaon Rav D. Oppenheim; HaGaon Rav Yonasan – author of Urim VeTumim and then Darshan (exponent) of Prague; the author of Shav Ya’akov and the inquiring rabbis have all failed to find an answer.”

Later poskim, though, have tried to solve the quandary by logical deduction: The Gemora (Bava Basra 124a), after all, defines a firstborn’s rights as a gift, learning from the verse “to give him twice as much” (Devarim 21:17). But who bestows the gift? His father is already deceased so it could be that the gift is bestowed by his brothers and, if he has no brothers, he has no gift and does not inherit a firstborn’s portion (see Responsa ‘Ateres Tzevi, 2).

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Kinyan Peiros on the Esrog

Rav Nachman bar Rav Chisda expounded: If one said to another, “This esrog is given to you as a gift, and after you (his death) it shall be given to So-and-so,” and the first recipient took it and fulfilled his obligation with it, this will be a point of dispute between Rebbe and Rabban Shimon ben Gamliel (for according to Rebbe, who maintains that the one who has the rights to the produce is not regarded as the owner of the object, he will not have discharged his obligation, for the esrog is not his; according to Rabban Shimon ben Gamliel, it is regarded as his, and he will have fulfilled his obligation).

Rav Nachman bar Yitzchak asked him: The dispute between Rebbe and Rabban Shimon ben Gamliel is only if the acquisition of the produce is like the acquisition of the capital or not, but here, if the first recipient cannot discharge his obligation with it, for what other purpose was the esrog given to him! Rather, it is clear that everyone holds that the first recipient may properly discharge his obligation with it; the argument would be regarding a case where he sold it or ate it.

The Mefarshim ask: According to Rebbe, who holds that the one who has the rights to the produce is not regarded as the owner of the object, how can the first recipient discharge his obligation with this esrog? It is not regarded as “lachem” – completely his, so what difference does it make that the donor intended for him to fulfill his mitzvah?

The Ritva explains that since the donor’s intention is that the first recipient should discharge his obligation with it, it must be that he gave him the guf (capital) and the peiros (the produce) completely; however, he stipulated that he, after he has discharged his obligation with it, must give it over completely to the second person. This would be similar to a gift that was given on condition that it is returned to him.

Reb Shmuel Rozovsky explains as follows: It is evident from the Gemora above (136b) that even according to Rebbe, it is possible to give someone rights to the produce that will be regarded as an acquisition of the guf. For the Gemora said that a father, who retains the rights to the produce in a case when he gave away the land to his son, since it affects him personally, he made sure to keep certain rights to the land along with the produce. So too in this case, it is evident that the donor intends to give the guf of the esrog along with the peiros; accordingly, the recipient can discharge his obligation with it.

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Kinyan Peiros for Bikkurim

By: Rabbi Avi Lebowitz

The Gemora cites the dispute between Rabbi Yochanan and Rish Lakish whether a kinyan peiros (acquiring the produce) qualifies as a kinyan ha’guf (an acquisition of the land). The Gemora has two applications of this argument. One is that if a father gifts the body of property to his son, retaining for himself the fruits for the duration of his lifetime, and the son would sell what he owns, if the father would outlive the son, then the question becomes whether the father’s retention of peiros would entitle him to take the property back from the buyer. The second application is in the context of bikkurim, whether one is able to read the parshah when they only have a kinyan peiros.

The Rashbam explains that according to Rish Lakish that kinyan peiros wouldn’t entitle someone to read the parshah is because they couldn’t say “the land which was given to me,” but they would be obligated to bring the fruits even biblically, because they are included in “that which is brought from the land.”

Tosfos rejects the Rashbam’s explanation because if they aren’t included in the verse of “the land which was given to me,” they shouldn’t be included in “that which is brought from the land” either? Tosfos concludes that the entire obligation to bring the fruits according to this opinion is only rabbinic.

The Ketzos HaChoshen (257:3) answers a major question and with it explains the Rashbam.

The Gemora in Yevamos says that unless we accept Rabbi Yochanan that kinyan peiros is like kinyan ha’guf, no one would ever be able to read the parshah of bikkurim unless they come from a chain of only sons (because if there are multiple sons, we view their inheritance as purchasing from one another so they only own kinyan peiros). How then can we hold like Rish Lakish?

Tosfos in Yevamos raises this question and says that we only hold like Rish Lakish in the context of the father gifting property to the son because a father will be mochel to the son and leave over a very weak share of kinyan peiros, but in general we follow Rabbi Yochanan that a standard kinyan peiros would be like a kinyan ha’guf.

The Ketzos offers another approach. Kinyan peiros can sometimes refer to a weak ownership, but sometimes can refer to a standard ownership which expires with time. A kinyan l’zman (for a limited time) is a very powerful kinyan peiros because the “owner” can do whatever he wants, even ruin the field; just that his ownership will expire, whereas a true kinyan peiros cannot ruin the field. One who owns a field until Yovel is considered to have a “kinyan peiros,” but it is a very strong kinyan peiros which would enable him to even read the bikkurim because it is like a kinyan ha’guf until it expires. But, when one only has a kinyan peiros, they cannot read the parshah of bikkurim.

The Rosh in a teshuvah quotes Rabbeinu Avigdor who says that one, who has a lulav for kinyan peiros, namely only to fulfill the mitzvah, cannot fulfill the mitzvah since it doesn’t qualify as “lachem” (being his). But if they have a gift which was given on the condition that it should be returned, it is like a kinyan ha’guf that expires and they can fulfill their obligation with it. Therefore, one who has a kinyan ha’guf on a field that will expire, such as a purchased field that will return with Yovel, qualifies as “that which is brought from the land” because for the time being, when he brings the bikkurim, he “owns” the land (similar to the requirement of “lechem,” which is fulfilled by a kinyan ha’guf that will expire). But, the requirement for reading the parshah is “the land which was given to me,” which means it is his forever, which is not the case, so he cannot read the parshah.

It seems based on the Ketzos that the distinction between the two verses is that one can consider a land which he is now an owner but his ownership will expire, to be “your land” since it is not his. But, from the perspective of the giver, it is not a “land that Hashem gave me,” because it was only given temporarily.

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Inheritance - Bava Basra 134

What did the Father Intend?

The Gemora tells the story of Yonasan ben Uziel, who received the property of a man who did not wish to have his children receive it. The Gemora explains that Shammai felt that this gift was similar to the gift of Bais Choron, which was conditional on the recipient fulfilling the intent of the giver.

The Rashbam learns that the intent in this case was for the man’s children not to receive the property. Shammai therefore protested when Yonasan ben Uziel gave some of the property to them.

Tosfos (133b Ba) learns that the intent was for the children to receive the property, and the gift was for the man to avoid giving them the property directly, since he had sworn that they may not receive benefit from him. Shammai therefore felt this was the same as the case of Bais Choron, and further thought that Yonasan ben Uziel gave all the property to the children. Just as in the case of Bais Choron, the Sages ruled that a gift given only to circumvent an oath, and not allowing the recipient to consecrate it, is invalid, so Shammai felt that the gift was invalid. Yonasan ben Uziel explained that the father gave him the property as a full gift, and he actually did first sell and consecrate part of it.

The Ritva says that he specifically first sold and consecrated part of it, to ensure that the father meant it as a full gift, as indicated by his not protesting. The gift was thus an unconditional gift, so Yonasan could also give part of it back to the children, and avoid transgressing the oath.

My Brother?

The Mishna says that if one (e.g., Levi) claims that someone (e.g., Yehudah) is his brother, the doubtful brother only splits with the brother who made the claim, but not with the others.

The Rashbam explains that vis a vis Levi, we view the estates as split among all the brothers, including Yehudah, reducing Levi’s share appropriately. For example, if there are two other brothers (e.g., Reuven and Shimon), none of whom are first born, the estate will be split in the following manner: Reuven and Shimon claim there are three brothers, so they each get 1/3, which takes up 2/3 of the estate.

Levi and Yehudah claim there are four brothers. Levi therefore only collects ¼. At this point, 11/12 of the estate are taken. The last 1/12 is given to Yehudah. Although he claims he should be getting ¼, the other 2/12 would come from Reuven and Shimon, who do not accept his claim of being a brother. Levi can therefore tell Yehudah to discuss the remainder of his share with Reuven and Shimon.

Rabbeinu Gershom, however, says that Levi, by claiming that Yehudah is a brother, must split his whole share equally with Yehudah. Therefore, Reuven and Shimon each get 1/3, while Levi and Yehudah each get 1/6. If Yehudah proves to Reuven and Shimon that he is a brother, he will succeed in collecting 1/12 from each. In that case, he must give half of what he collects to Levi, who gave of his share to Yehudah, to compensate for Reuven and Shimon not agreeing to accept Yehudah as a brother.

A Son, for Inheritance

The Gemora says that it is obvious that a man can identify his son regarding inheritance, and therefore the Mishna is teaching us about yibum. The Rashbam says that although we learned from a verse that a man may identify one of his sons as a bechor, indicating that this is not an obvious concept, that is true when we knew the son to be his son, but not a bechor. In that case, the Torah tells us that the man has full power to identify a bechor, even regarding property which he otherwise would not be able to give to the son. However, in the Mishna, where we do not even know this person to be his son, the man has no special reliability. Therefore, all the Mishna is stating is that the man has the power to identify his son, only regarding property which he could otherwise give to him – i.e., present property, or future property that he will have until he is too frail to give it, according to Rabbi Meir, who allows for a gift of future property. That statement is indeed obvious, so the Mishna must be teaching us about yibum.

The Rashba and Ritva, however, understand the earlier verse that allows a man to identify his bechor, to allow a man to identify anyone as his son, even if we have no prior knowledge of a relationship. Therefore, the Mishna is empowering a man to identify someone as his son regarding inheritance, with no qualifications. When the Gemora says that this is obvious, the Gemora means it is obvious because we already know this from the verse cited earlier.

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