Who Pays for the Clock?

By: Meoros HaDaf HaYomi

The Forgers’ Scheme

A person who wants to show a specimen of his signature to a Beis Din should not sign at the bottom of a blank page. A few years ago the Torah community in Yerushalayim was outraged when a claim was presented to a Beis Din against a respected Torah scholar. The claimant produced a promissory note for a huge amount signed by the supposed debtor and the latter certified his signature but denied borrowing the money. The dayanim appointed a special investigative team who revealed that the claimant belonged to a group of swindlers who had managed to misuse the defendant’s signature. They had discovered that he was accustomed to sign his name in the middle of the front page of every book in his large library and all they had to do was just borrow one of his books, remove the blank page and compose a promissory note above the signature.

Indeed, in our sugya Abaye recommends that anyone required to demonstrate his signature should do so at the top of a page to prevent anyone from adding a fraudulent text above it. Commenting on our sugya, the Ritva clarifies that Abaye’s warning stems from an understanding of people and foreseeing their spontaneous reaction at unexpected times. Abaye’s suspicion, after all, is actually unfounded as a person may claim he has paid a debt, even if a signed promissory note is produced against him, and he is believed unless the note is signed by witnesses. The Ritva explains, though, that Abaye foresaw a typical person’s behavior: By the nature of things, when someone is faced with a false document, his spontaneous reaction is to deny there having been any loan and subsequently he is not believed to assert that he paid the debt. The best thing to do, then, is to prevent any untoward use of one’s signature (Bava Basra 6a, Kesubos 88a, and see Shulchan „Aruch, C.M. 69:2, and the Shach, ibid, S.K. 10).

A claim based on a promissory note with no indicated amount: HaGaon Rav Mordechai Yafeh, author of the Levushim, cites an unusual event in his Levush Ir Shushan (section 48). About 420 years ago a person claimed to a Beis Din that another owed him a certain sum and, as proof, presented a blank promissory note signed by the supposed debtor, with no indicated amount. “The debtor,” he asserted, “gave me this note because he trusted me to fill in the amount he owes me.” The claimant added that were he a liar, he could have written in any sum he wanted and therefore the Beis Din should believe his demand. Still, the “Levush” immediately rejected the claim as “even a fool” would never give another a signed blank promissory note and we must assume that the defendant had lost the note, which was later found by the claimant. Concluding with a sharp warning, he declares that anyone giving another such a blank note is “merely a witless person willing to believe anyone, or insane and defined as a shotah, whose actions have no validity.”

Claiming money with a blank check: Nonetheless, the situation is different today and the above topic is relevant as people do give others signed checks with no specified amount, such as when paying a sum to be determined according to the future rate of exchange of some foreign currency. The practice is most common when borrowing from a free loan fund if the loan is repaid in installments and linked to a foreign currency. Moreover, most Gemachim lending medical apparatus or other equipment require a blank signed check. Indeed, what is the halachic validity of a monetary claim based on a signed check lacking any indicated amount?

Halachic authorities assert that if people are accustomed to give others such “open” checks, the holder of the check is believed to demand any amount. This regulation is also supported by Paragraph 19a of the national ordinance for promissory notes, which states that if a note lacks an essential detail, the holder may fill in the detail as he wishes. It follows, then, that the holder is believed to present a claim against the signer of a check missing a specified amount (see Mishpatecha LeYa‟akov, I, 22:6).

Who should Pay
for a Clock for the Teacher?

Our Mishna states the regulation that the person benefiting from a document must defray the costs of its being written. A borrower pays the expenses of drawing up a promissory note as he benefits from the loan and a purchaser defrays the costs of a bill of sale or deed, which is delivered to him as proof of his purchase and protects his rights. The author of Meshech Chochmah (at the end of Parashas Behar) supports this halachah with a passage from Yirmiyahu (32:10), recounting that the prophet bought a field from his cousin Chanamel ben Shalum, attesting “And I wrote the document and signed” even though the seller is generally assumed to write the bill of sale. The verse indicates, then, that Yirmiyahu paid the scribe, as stated in our Mishna.

An obligation to contribute to charity used as bail: The scope of the above halachah is seen from a question asked of the Rosh by his son Rabbi Yechiel. A certain Beis Din suspected that Shimon would not appear for a Din Torah scheduled for a particular time and commanded him to submit a guarantee. Shimon’s friend then signed a document before the Beis Din that if Shimon failed to appear as demanded, he would donate 1,000 coins to charity. The question arose, though, as to who should pay the costs of writing the document: Shimon, his litigant, or the guarantor. At first, the Rosh ruled that Shimon’s litigant must pay as the guarantee is to his benefit. He later discovered, though, that there was no other litigant but that “Shimon had sinned and the community wanted to imprison him till his punishment will be decided.” The Rosh then changed his decision and ruled that Shimon, as the one benefiting from the guarantee, must pay the price of the writing (Responsa of the Rosh, Kelal 13:2-3).

About 500 years ago an argument arose between a teacher and a certain pupil’s parent. The teacher was hired to instruct the child for a few hours each day and needed a clock in the room to know when the session ended (pocket watches had not yet been invented). The father claimed that the teacher must pay for the clock but the teacher insisted that the father bear the expense. Rabbi Yisrael Isserlin, author of Terumas HaDeshen, ruled that the father should buy the clock, but his student, Rabbi Yisrael bar Rav Chayim of Bruna, questioned the decision: Apparently, just as one who hires a tailor to sew a garment need not buy him a needle, and just as one who hires a scribe need not provide him with a pen as all artisans are hired with their tools, the teacher should pay for the clock required for his work.

The difference between teachers and tailors: Rav Yisrael of Bruna clarified his mentor’s ruling by explaining the difference between a teache r’s clock and a tailo r’s needle. A tailor without a needle is no tailor and a penless scribe is no scribe, as they cannot practice their trades without such tools. A teacher needs no clock for his work, as he only requires the ability to speak and explain. A clock is merely meant to tell him when to finish his task. We cannot force him to pay for it as he can claim that he can estimate the elapse of time without it. If the father refuses to believe him, says Rav Yisrael of Bruna, “Buy a clock and I’ll teach by it.”

The Collection of Legal Costs

In civil courts the losing party is charged for legal expenses, generally including the court costs and the winning party’s lawye r’s fees, etc. How does the Torah view such costs and how does a Beis Din act according to halachah?

Our sugya explains that the secretaries of a Beis Din would record the litigants’ claims, as Rashbam comments, “so that they would not change their claims” (s.v. Shitrei ta’anta) and our Mishna rules that the expenses involved in writing the records must be shared equally by both litigants. The Ribash deducts from there (Responsa, 222) that the general costs of a Beis Din should also be equally shared by the litigants rather than be borne exclusively by the losing party. Both the claimant and defendant need the services of the Beis Din and should divide the expenses entailed by their case.

An uncooperative defendant pays the extra costs he causes: Still, the Ribash emphasizes that if the defendant is uncooperative and causes the claimant to suffer needless expenses, such as the issuance of a “notice of refusal” (kesav seiruv), he is regarded as guilty of causing damage by negligence and must defray such expenses. Moreover, if the Beis Din discovers that a claim is baseless and only intended to hassle the defendant, the latter is exempt from all court costs and they are then borne exclusively by the claimant (Yeshuos Yisrael by the Gaon of Kutna, C.M. 14, in Ein Mishpat, s.k.14). Nonetheless, we have yet to clarify if in such cases a defendant may also demand the claimant to defray his own costs, such as payment to a rabbinical court advocate (to’en rabani) or the like. Halachic authorities indicate that the claimant should not be so charged as such expenses are not unavoidable and a defendant may represent himself. Hiring a to’en rabani is optional and the costs involved are not considered damage caused by the claimant.

A practical implication of the above discussion is that if a Beis Din allows a person to present a claim at a civil court and he wins his case, resulting in the defendant’s obligation to pay for the claimant’s lawyer, then the claimant must return to Beis Din to ask whether he may collect that sum from the defendant.

The Tree That Wasn’t

HaGaon Rav Aharon Kotler zt”l, Rosh Yeshivah of Lakewood, was known to be extremely heedful to guard the truth. Once he was shown an advertisement with a sketch of the Yeshivah including the surrounding trees. He counted the trees, though, and found that three had been drawn instead of the actual two and not wanting to lend a hand to the misrepresentation, banned the picture. “It’s a falsification,” he said, “and the Torah is a Torah of truth and any method to maintain it must rely on the strict truth.”

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Minimum Number of Coins of Different Denominations

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The braisa teaches that when a shtar mentions that a person borrowed “gold dinarin” but it does not mention the number of dinarin, the creditor may claim only two gold dinarin, since the minimum possible amount to which the plural “dinarin” refers is two -- “mi’ut rabim shenayim.” The braisa earlier (165b) teaches the same with regard to a shtar that says “silver dinarin.” Similarly, the Mishna (165b) states that when a shtar mentions that a person borrowed “zuzim,” “sela’im,” or “darkonos,” and the number of those coins was erased, the creditor may claim only two, which is the minimum possible amount of the plural word used in the shtar.

Why does the Mishna and braisa need to repeat itself with regard to these different types of coins? The Mishna and braisa need only teach this in one case, and then we would know that whenever there is an unspecified amount of “coins” (in the plural) -- regardless of what type of coin -- the creditor may collect only two!?

The Penei Shlomo answers that the Mishna (and braisa) is teaching a novelty in each case. Since the subject of the shtar is coins, which are divisible entities, we might have thought that even though the word used is plural, it refers not to two coins but to one and a half coins. The Mishna is teaching that the creditor is entitled to more than one and a half coins -- he is entitled to take two full coins of the specified denomination, because if it is true that the borrower only borrowed one and a half coins (such as a sela and half a sela), then the value of the half-coin would have been expressed in terms of a smaller denomination (a sela and two dinarin).

The Penei Shlomo adds that this is also why the Mishna and braisa use the phrase, “It is not less than two...,” instead of saying, “He may only collect two.” “It is not less than two” excludes a “lesser” amount, and implies that we might have thought that the creditor is only allowed to collect an amount which is less than two (such as one and a half). “He may only collect two” excludes a “greater” amount, and implies that we might have thought that the creditor should collect more than two. Since the Mishna is teaching that he “may” collect more than just one and a half, it says, “It is not less than two.”

The Mishna and braisa, therefore, needed to teach this novelty with regard to each denomination of coins, since we would not have been able to learn one from the other. People might write “one and a half zuzim” without expressing the fractional zuz in terms of a smaller denomination. Therefore, the Mishna must teach us in each case that the plural word is not less than two.

The Tiferes Yisroel explains that each case in the Mishna is necessary for the following reasons. In the case of “Kesef zuzim which are...,” where the number of zuzim was erased, we might have thought that the creditor is entitled to collect four zuzim, since the words “Kesef zuzim which are...” imply that the author of the shtar is defining an equal value for “Kesef zuzim.” The lowest number of zuzim which are equivalent to a different coin is four, and the shtar originally said, “Kesef zuzim which are one sela.” Therefore, the Mishna needs to teach us that the creditor may only collect two zuzim, because perhaps the author of the shtar was giving a number of zuzim, and not an equivalent value in another denomination.

In the case of “Kesef sela’im which are...,” where the number of sela’im was erased, we might have thought that the author of the shtar was referring to two “inferior” sela’im (as mentioned earlier in the Mishna), which are equal to seven zuzim (or 6 2/3 zuzim), and not 8 zuzim, and the shtar originally read, “Kesef sela’im which are seven zuzim.” Therefore, the Mishna teaches that the creditor may collect two standard sela’im and not inferior ones.

In the case of “Kesef darkonos which are...,” where the number of darkonos was erased, we might have thought that certainly the author of the shtar was referring to inferior darkonos, for the following reason. A darkon is a large, valuable gold coin, and people do not usually pay back debts with such coins. Accordingly, we might have thought that the author of the shtar meant inferior gold darkonos, and that is why he was writing the actual value of the darkonos, which was “less” than the value of two standard darkonos. Therefore, the Mishna needs to teach us that the creditor is indeed entitled to collect two normal darkonos and not inferior ones.

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Most People are Guilty of some sort of Thievery

By: Meoros HaDaf HaYomi

Dear Customer, Please Note: This Book is not Proofread at all

Rav Yehudah asserts in the name of Rav that most people are guilty of some sort of thievery and, as Rashbam explains (s.v. Rov begezel), this means that most people transacting business allow themselves to deny others their due profit. In other words, fraud, false pretenses and financial conniving are considered gezel.

In his Sefas Tamim (Ch. 3), Rabeinu Yisrael Meir HaKohen zt”l, the Chafetz Chaim, proves that even one who causes his fellow a loss is considered a thief. True to his word, he was renowned for his extreme avoidance of anything resembling falsification or thievery, as evident from his behavior concerning the books he authored.

The Chafetz Chaim was in Warsaw when he first had his Mishnah Berurah printed and every day he would come to the printer to check that no smudged or otherwise defective pages were being sent out for sale. He left his learning for several months for this purpose and afterwards relied on his son to undertake the task. When he discovered that despite his great care, one of his books had been sold with a few defective pages, he hurried a sharp letter to his son, saying “What have you done to me, my son? All my life I’ve taken care to avoid anything resembling thievery but I never thought that I would err in outright robbery and because of you this has happened!” The Chafetz Chaim immediately ordered the printer to reprint those pages found defective and publicize in the press that anyone who had bought a defective edition should inform him of such in order to receive the corrected pages by post (Michtevei HeChafetz Chaim, p. 30).

The Chafetz Chaim knew no rest till he hired special proofreaders to examine each page of his printed books and, if approved, to mark the front page of each book as “proofread” (HeChafetz Chaim Ufo‟olav, I, Ch. 32). Some of these books are still extant.

The problem of printing errors also concerned other halachic authorities. For example, the students of the Tsadik HaGaon Rav Eliahu Lopian zt”l, led by the famed Yerushalmi Magid Rabbi Shalom Schwadron zt”l, published the popular Lev Eliahu with a warning on the front page: “Dear purchaser: This book is not proofread and I assume no responsibility – The Publisher.” We have no knowledge of the severity of the printing error discovered by the Chafetz Chaim but HaGaon Rav Yaakov Kanievski zt”l, the Steipler, states in a letter that the sale of a book containing minor errors that still allow readers to understand the text is not considered gezel. After all, anyone buying a book knows that the task of printing is complicated and hardly ever free of mistakes. In his opinion, a book with no pages missing may be sold even with some defects and therefore, when he found that the last letters on a page were omitted in an entire edition of his Kehilos Yaakov, he continued to sell that edition as the defect did not prevent understanding the text (Karyana D’igarta, I, p. 351). Of course, this principle applies only to publishers of new books but one is not permitted to sell defective sidurim, as finely proofread sidurim are available on the market and they are expected to be free of errors.

All the above is just a fraction of the material pertaining to this broad topic. The Gemora in Brachos (6a) explains that one who fails to respond to a greeting is called a robber, indicating that depriving a person even of his due word is defined as gezel (Sefer “Mamon Kasher”).

Once, Rabbi Elazar Shulevitz zt”l, Rosh Yeshivah of Lomzha, was standing praying Shemoneh Esreh at the entrance to a synagogue and Rabbi Yisrael Salanter, standing near him, approached him and whispered, “Robber! The synagogue is packed full and you’re robbing the congregation of air!” Rabbi Shulevitz immediately interrupted his prayer to move away (Lev Eliahu, Bereishis). Similarly, though in an opposite circumstance, the Vilna Gaon zt”l would take care to shut the door to the bathhouse immediately after entering lest he rob the bathers of the warm air inside (Tosefes Maaseh Rav, S.K. 29). According to the Chafetz Chaim, even someone who participates in a wedding or sheva berachos meal without enhancing the joy of the chassan, about whom the Gemora in Berachos (ibid) states that he transgresses “five voices”, might be guilty of robbery (Michtevei HeChafetz Chaim, p. 46).

Why the Labor Cost More

A simple tailor became close to Rebbe Noach of Lechovitz and the Rebbe persuaded him to refrain from the custom then common among tailors to demand clients to bring them extra cloth in order to benefit from the quantity remaining after their work. “This custom is outright thievery,” explained the Rebbe, “You may charge more for your labor but you mustn’t practice that foul custom.”

“And what should I tell my customers,” questioned the tailor, “if they ask me why I charge more yet need less cloth?”

“Tell them,” replied the Rebbe, “that you learnt to cut in a new way that doesn’t need a lot of cloth but that learning the method cost a great deal.”

The tailor obeyed the Rebbe’s instructions but after a while his customers remarked that he had already covered the expenses of learning the new method and asked why he continued to charge more.

“The new method,” he answered, “is a whole system to be learnt again every day and every week” (Hizaharu Bemamon Chavreichem, p. 366).

The Old Man Fell Asleep on His Coat

On the night following the demise of HaGaon Rav Elchanan Wasserman’s wife, his son Rabbi Naftali sat down and wept incessantly while several yeshivah students slept in an adjacent room. Rav Wasserman approached his son and told him, “You shouldn’t cry so loudly now. The boys might wake up and you would rob them of their sleep” (Or Elchanan, I, p. 13).

A similar story is told of Rabbi Avraham of Purisov. Despite his known tendency to conceal his behavior, he once learnt all night in the beis midrash, later explaining that an old man had fallen asleep on the edge of his coat. “I couldn’t, after all, stand up for fear of waking him!” (Chasidim Mesaperim, I).

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Mentioning the Praise of Others

Another time Rabbi Shimon was sitting in Rebbe’s presence when he finished a section of the Book of Psalms (one of the five books that Tehillim is divided into). Rebbe said, “How neat is this writing!” Rabbi Shimon replied, “I did not write it; Yehudah Chayata wrote it.” Rebbe rebuked him by saying, “Stay away from this lashon hara.”

The Gemora asks: In the first case (by the tied document), one can understand Rebbe’s rebuke, since there was lashon hara involved; what lashon hara, however, was there in this case?

The Gemora answers: It is based upon the teaching of Rav Dimi, for Rav Dimi, the brother of Rav Safra, taught a braisa: A man should never speak in praise of his friend, because by mentioning his praise, he will come to mention his faults as well.

The Gemora in Gittin (67a) relates that Issi ben Yehudah used to specify the praiseworthy merits of the various Sages.

The Chidah challenges this from our Gemora, which rules that one should never speak in praise of his friend, because by mentioning his praise, he will come to mention his faults as well!?

He initially answers that Issi ben Yehudah specified their merits after their death; it would then be permitted, for there was no concern that he would talk about their faults after their deaths.

He retracts from this answer, for it is evident from the Avod d’Rabbi Nassan that Issi ben Yehudah spoke about their praises even during their lifetime!

It would seem that the Chidah’s question can be answered according to the words of the Rashbam here. He writes that a person should never speak excessively in praise of his friend, because by mentioning his praise, he will come to mention his faults as well. Apparently, it is only prohibited if one offers excessive praise; this will lead to the listener or the speaker interjecting that the person does possess some faults as well. Issi ben Yehudah, however, was not exaggerating at all when specifying the merits of those Sages.

The Maharsha challenges this explanation, for it does not seem from our Gemora that Rabbi Shimon was excessively praising Yehudah Chayata; he was merely stating that it was he who wrote that book of Tehillim, and that it was a neat handwriting.

The Rambam is of the opinion that this prohibition applies only in public, for there are bound to be enemies of the subject of the praise in the crowd, and they will almost certainly begin to talk disparagingly about him. In private, however, this prohibition would not apply.

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No Person is Saved from these Transgressions

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The Gemora states: Rav Amram said in the name of Rav that there are three transgressions from which no person is saved every day. They are: thoughts of sin, examining one’s prayers (Rashbam – feeling overconfident that his tefillah will be answered positively; Tosfos – lack of concentration during tefillah), and lashon hara. The Gemora explains that lashon hara refers to avak lashon hara (close to being lashon hara).

What does the Gemora mean that “no man is saved” from these transgressions? Certainly there are great Tzadikim and Talmidei Chachamim who -- even if not entirely free of sin (see Koheles 7:20) -- do not transgress all of these transgressions every single day! How can the Gemora say that “no person” is saved from these three transgressions every day?

In addition, if no one is saved from these three transgressions, then why are they transgressions? Hashem certainly would not give commandments that are impossible to keep.

The Iyun Yaakov explains that the Gemora means to say that because the temptation for these three transgressions is so great, no person is saved from these three transgressions without putting forth much effort. Someone who puts forth the effort to protect himself from these transgressions, though, will succeed and will not succumb.

The Toras Chaim, however, does not seem to agree with this explanation. He asks why the Gemora says that “no person is saved” from these three transgressions, instead of saying simply that “there are three transgressions which a person transgresses every day.” He answers that the Gemora is teaching that even one who attempts to avoid these transgressions will not be saved from transgressing them inadvertently, since the frequency of the challenge of these transgressions is so great.

How, though, does the Toras Chaim explain that there are Tzadikim who are able to avoid these transgressions?

The Maharsha explains that when the Gemora says that “no person is saved” from these three transgressions, it is referring to an ordinary person, but not to Tzadikim, who indeed are saved from these transgressions. He explains that while only a Jew, and not a gentile, is called “Adam” (Yevamos 61a), there is still a much higher level that a person can reach. The verse in Zecharyah (3:7) says that when a person follows the ways of Hashem, then “I will give you strides among these [Mal’achim] standing here.” Similarly, the Gemora in Chagigah (15b) explains that the verse, “The lips of the Kohen shall safeguard knowledge, and they shall seek Torah from his mount, because he is an agent (Mal'ach) of Hashem...” (Malachi 2:7), is teaching that when a Torah teacher is similar to an angel, then one should seek to learn Torah from him. This teaches that a person should strive to reach a level of absolute submission to Hashem, like the level of the angels.

When the Gemora here says that “no person (Adam) is saved” from these three transgressions, it is referring to a person who has not yet reached this level of perfection in his Avodas Hashem. The Maharsha explains that the word “Adam” is an acronym for the words, “Efer” (ashes, dust), “Dam” (blood), and “Marah” (bile), as the Gemora in Sotah (5a) says. An ordinary person, whose physical composition dominates his actions, is not able to prevent himself from transgressing these three transgressions. The fact that he is comprised of “Efer” negates his ability to activate his spiritual strengths in order to pray properly, and thus he sins with the transgression of iyun tefillah. The heat of the “Dam” within him causes him to lust for immoral pleasure, and thus he is not saved from thoughts of sin. His element of “Marah,” bile, creates in him the bitterness that causes him to have bad Middos and leads him to speaking lashon hara.

A person who conquers the lusts created by his physical composition overcomes the pull of those elements and rises above the status of “Adam” (“Efer, Dam, Marah”) and becomes comparable to an angel. Such a person certainly is able to avoid transgressing these transgressions.

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Amount of Lines that Invalidate a Document

The Gemora asks: And how much is the space that disqualifies a document?

Rav Yitzchak ben Elozar said: As much space as would be required for the writing of “lecha, lecha” above each other. [The “lamed” is a tall letter, and that should not touch the “end of chaf,” whose leg hangs low.] This indicates that he is of the opinion that the limit is two written lines and four blank spaces (for each of those words needs a blank space above for the “lamed” and a blank space below it for the “end of chaf”).

Rav Chiya bar Ammi said in the name of Ulla: As much space as would be required for the writing of a “lamed” on the top line and an “end of chaf” on the lower line. This indicates that he is of the opinion that the limit is two written lines and three blank spaces (for there is no “lamed” on the bottom line, and there is no “end of chaf” on the upper one).

Rabbi Avahu said: As much space as would be required for the writing of “Baruch ben Levi” on one line. Evidently he holds that the limit is one written line and two blank spaces (one space above for the “lamed,” and one space below for the “end of chaf”).

The commentators ask on Rabbi Avahu’s opinion: How can he maintain that the document is invalidated with one line of text and two spaces (one above and one below it) when the Gemora above clearly ruled that it is a space of two lines of text that invalidate a document!?

Some Rishonim answer that Rabbi Avahu disagrees with Chizkiyah and hold that the amount of space needed to disqualify the document is not measured according to the handwriting of the witnesses; rather, it is based upon the handwriting of the scribes. Accordingly, it is sufficient with one line of text and two empty spaces, for the scribe may manage to use the space for two lines of text with an empty space between them. According to this explanation, Rabbi Avahu agrees with the braisa above, which ruled that a space of two lines of text invalidates a document.

Tosfos Ri”d answers that Rabbi Avahu maintains that the space of two lines of text which invalidate a document is without any space above them or below them; it is referring just to the lines of text and the space between them (not like Rav Nachman bar Yitzchak). According to this interpretation, Rabbi Avahu’s amount and the ruling of the braisa are precisely identical, for one line of text with two spaces is exactly the same as two lines of text with one space between them.

The Ritv”a writes that Rabbi Avahu holds that the two lines mentioned above that invalidate a document refer to two blank spaces surrounding one line of text.

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Invalidated Contracts and Gaps in Sechach

Last Line of the Contract

Rabbi Yochanan says that a contract must review its content in the last line, and Rav Amram explained that this is because we disregard anything in the last line before the signatures.

The Rishonim explain that we fulfill this by writing vkanina – and we (the witnesses) received authorization regarding everything stated above.

The Rosh rules that if a contract does not summarize its content at the end, it does not conform to the required format of a contract, and is invalid.

The Ramban rules that it is valid, but we disregard whatever is written in the last line.

The Shulchan Aruch (HM 44:1) rules like the Ramban.

The Rishonim state that our custom is to fill in the last line with the phrase “v’hakol sharir v’kayam” - and all of this is in force and validated.

The Rashbam says that this phrase is a form of validation, and gives the line above it full legal force.

Other Rishonim disagree and state that even with our contracts, the last line has no legal validity.

Rabbeinu Tam explains the form of a get, in which we write the following last 2 lines:
v’dain etc. – this should be a contract of divorce
k’das moshe v’yisrael – as instituted by Moshe and Yisrael
Rabbeinu Tam says that the first of these lines is an integral part of the get, and not just a review of the earlier text. The last line takes the place of the validation of sharir v’kayam, and gives the preceding line legal validity.

The Rosh says that nowadays we require a contract to end with sharir v’kayam, and any contract without it is invalid. We therefore give all the preceding lines full legal validity.

The Shulchan Aruch (HM 44:9) rules like the Rosh.

See Shach (10-12, 21) for a deeper discussion of the rationale and ruling regarding sharir v’kayam.

The Gemora explains that a contract with two blank lines is invalid, since we are concerned that one will put false information in one of the blank lines.

The Ramban explains that on a contract with more than one blank line, we are concerned that there may have been more than two blank lines, and the last lines are false.

The Ri Migash says that even if we see nothing that would indicate that (no content at the end to the advantage of the creditor), the contract is invalid, since he could have forged part of the contract.

The Rema says that this is a fine on the holder of the contract, since he made forgery accessible.

1 ½ lines

The Gemora discusses whether a contract with 1 ½ blank lines before the signatures is valid or not, and resolves that it is not.

Tosfos (162b iba’ya) debates what was the case that the Gemora was discussing. Tosfos says that if the contract finished in the middle of a line, and the remainder of that line, in addition to the next line, was left blank, such a contract is clearly invalid, since the holder of the contract can fill in the space after the text of the contract. The other option is a case where the contract ended at the end of a line, a blank line was left, and the witnesses started signing half way through the next line. Tosfos says that such a case should clearly be valid, since the only line that can be filled in is the one before the signatures, and we disregard that line. Tosfos concludes that the Gemora’s question was a width of 1 ½ lines, similar to the measure of one and two lines, discussed in the braisa.

Filling in with Relatives

The Gemora cites Chizkiyah’s statement that if one filled in blank space in a contract with witnesses that are relatives to the parties, the contract is still valid.

The Rishonim debate in what context Chizkiyah made his statement. Rabbeinu Chananel says that Chizkiyah is referring to a get kereyach – a bald contract, i.e., a closed contract (mekushar), which is missing witnesses. Such a contract must be signed by three witnesses on each of its enclosures. Chizkiyah is saying that if one used relatives for the extra signatures necessary, the contract is valid.

The Mishna in Gittin (81b) records a dispute between Rabbi Akiva and Ben Nanas about this case and Chizkiyah is ruling like Rabbi Akiva, who only allows relatives to fill in the necessary signatures.

The Rashbam challenges this position, since Chizkiyah, an Amora, would not need to rule or discuss a case that was already discussed in a Mishna, nor would he need support from a braisa, since he is supported by Rabbi Akiva in a Mishna.

Rather, the Rashbam says that Chizkiyah is discussing the case of our Gemora, i.e., a contract that had too much blank space before the signatures, and is stating that if one filled in this space with related witnesses, the contract remains valid.

The Mishna in Makkos (5b) states that if a group of witnesses testify, and one is found to be invalid, the whole testimony is invalidated.

Tosfos (162b nimtza) cites different opinions regarding how to reconcile this Mishna with Chizkiyah’s statement, validating a contract in which relatives signed to fill in blank space.

The Rambam (Edus 5:6) rules that a contract with two valid witnesses is assumed valid, even if the remaining witnesses are not valid. If the witnesses are available, or if others were there, we investigate whether they signed together. If they signed together, the contract is invalid, but it is otherwise valid.

Rav Chaim Brisker explains that the Rambam considers witnesses on a contract to have two parts to their testimony – the witnessing, which takes place at signing, and the testimony, which occurs when the contract is brought to court. When a contract is brought to court, the Gemora says that witnesses signed in a contract are considered to be fully examined and accepted, and they therefore exist independently, and the invalid witnesses do not affect the valid ones’ testimony. However, if they signed together, they have joined together in their witnessing, and therefore fall under the ruling in Makkos, invalidating the contract they signed.

Invalid Schach and Gaps

Chizkiyah cites the rules for gaps in s’chach, and invalid s’chach, as a precedent for his ruling that invalid witnesses can be better than blank space in a contract.

Tosfos explains that the measures given for invalid s’chach (4 tefachim) and gaps (3 tefachim) are only in a case where these areas go from one end of the sukkah to the other, and thereby make the valid s’chach not be surrounded by three walls, or when there isn’t the minimum area of valid s’chach (7 x 7 tefachim). However, if the valid s’chach surrounds these areas, or if these areas are in a location where the valid s’chach has 3 walls around it, and there is at least 7 x7 tefachim of valid s’chach, they do not invalidate the sukkah, but only their location itself.

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Get Mekushar Bizman Hazeh

The Mishna states: A plain document - its witnesses are inside it (on the bottom). And a tied one - its witnesses are on the reverse (between one fold and the next). [They began by wring a single line or a number of lines of the essence of the document, and they folded the written part upon the part below and sewed them together. Another line or lines were written, and again the parchment was sewn down, and the procedure was repeated until the last fold. Each such fold was known as a kesher, and that is why it is called a get mekushar. The Gemora explains that the tied document type was ordained by the Rabbis primarily for gittin. They instituted it for the hot-tempered Kohen who might in a fit of anger decide to divorce his wife. Unlike any other Jew, a Kohen may not marry a divorcee, including his own ex-wife. They therefore instituted the tied deed which cannot easily be written quickly in order to allow time for the Kohen’s temper to cool. As this document type was ordained for divorce, the Rabbis also instituted it for other documents, for bills of indebtedness as well as for bills of sale so that one may choose the tied document, so as not to differentiate between bills of divorce and other documents.] A plain one whose witnesses signed on its reverse and a tied one whose witnesses signed inside it - both are invalid. Rabbi Chanania ben Gamliel says: A tied one whose witnesses signed inside it is valid, because he can make it a plain one (by not sewing the knots; and even though there are spaces between one line and the next, one need not be concerned about that, as there are many unskilled scribes who leave considerable space between one line and another). Rabban Shimon ben Gamliel says: All is in accordance with the custom of the place. A plain document requires two witnesses, while a tied document requires three witnesses. If a plain document contained one witness or a tied document contained two witnesses, they are both invalid.

According to the Ramban, the Tannaim of the Mishna disqualified even a shtar where the witnesses signed on both sides – underneath the body of the shtar as in a plain document, and on the opposite side, in the manner which is done in a tied document. The reason for this is because the “ba’al hashtar” – the owner of the document – is particular as to how the shtar should be written. If he instructed them to write it as a plain document, the signatures of the witnesses on the back side of the shtar will ruin its “openness”; and if his instructions were to make it a tied document, their signatures on the front side remove the document from being called a tied document.

The Nimukei Yosef infers that according to the Ramban, there could be room to validate a tied document nowadays. This is because it is not the custom at all to make a tied document, and it does not enter the mind of the ba’al hashtar to instruct them to make it opened and not tied.

However, he says, according to other Rishonim’s explanation of the Mishna, it would still be invalid. They explain that the reason that a plain document is invalid when the witnesses sign their names on the back is because it was not done in the manner that the Chachamim instituted; it has nothing to do with the ba’al hashtar’s instructions. Accordingly, nowadays, a document where the witnesses signed on the back will be invalid, for it is not being done according to the established practice of the Chachamim.

The Rem”a (42:1) cites both opinions regarding this.

The Shac”h understood that the Rem”a, at least in one opinion, is validating a shtar that was completely made like a tied document – meaning, the witnesses signed only on its back side. The Shac”h disagrees and holds that this would be disqualified according to everyone, for it was not done according to the established practice of the Chachamim.

The Tumim writes that this was never the intention of the Rem”a. He was only referring to a case where the witnesses signed on both sides – underneath the body of the shtar as in a plain document, and on the opposite side, in the manner which is done in a tied document.

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Grandson vs. buyer

The Gemora rules: If a son sold the estate of his father (the portion which he was supposed to inherit) during the lifetime of the father, and he died (first the son and then the father), his son (the son of the son) may seize it from the purchasers (for it has now been clarified that it was never in the son’s possession to sell it, for he died before the father and never inherited it). The Gemora concludes that there is no clear proof to this halachah.

The Rashbam writes that the halachah is in fact that the grandson may take back the field, but it is difficult to understand (according to the Gemora’s discussion), since there is no conclusive proof.

Rambam (Hil. Mechira 22:7) rules explicitly in this very case that the grandson may take the field, and although the Shulchan Aruch (Choshen Mishpat 211:3) does not give this exact example, it is clear that the ruling would be the same.

The question is: Does the grandson need to repay the buyer?

A very important part to this is a concept that one cannot sell something that is not yet in this world, which is precisely what the son did, since the inheritance did not yet belong to him at the time of the sale (it should be as if it was not yet in existence). Therefore, the grandson has every right to take back the field. Tosfos and the Ra”n explain that the Gemora’s difficulty was not with this part of the halachah, but rather, it was with the ruling that the grandson may seize the field without compensating the buyer.

The Rashba further explains that we are forced to say that the grandson does not have to pay back the buyer because if the halachah were to be that the buyer must be reimbursed, then it should emerge that even the father should be able to take back the field.

The Baal Ha’itur and the Baal Haterumos both follow the opinion of the above Rishonim as well. The Shulchan Aruch (ibid) rules that the buyer is not reimbursed.

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Dancing at a distant Wedding

DISTANT CELEBRATION OF
REB AKIVA EIGER’S WEDDING

Reb Wolf Eiger, the uncle of Reb Akiva Eiger was unable to attend his nephew’s wedding. He made a simultaneous banquet of his own to celebrate the occasion. Reb Shaya Pik and other Rabbanim attended the festivities. He wrote to his nephew about the halachic issues (if one can fulfill the mitzvah of counting the omer by way of writing) which were discussed at the banquet.

What was the point of such a celebration? They weren’t dancing before the groom or the bride; they weren’t praising the groom in front of the bride. What caused these Rabbonim to celebrate in such a manner?

In the West (Eretz Yisroel) they would say: (A man who does not have a wife lives) without Torah.

Why is not having a wife like living without Torah; if anything, there exists more time for Torah study, not less?

Our Gemora refers to Ben Azzai as the “Talmid chaver” of Rabbi Akiva. Ben Azzai was considered somewhat of a disciple of Rabbi Akiva.

Rabbeinu Gershom comments: Since Ben Azzai was a “bochur,” he was unable to comprehend halachic logic as well as Rabbi Akiva.

What is the connection between being a “bochur,” and not comprehending to the fullest extent?

I once heard from my Rosh Yeshiva, HaRav Chaim Schmelczer zt”l that Rabbeinu Gershom means that Ben Azzai was a bachelor, and one who is not married does not have the same level of contentment as one who is married. Torah study requires one to be at ease; one must have a menuchas hanefesh in order to comprehend the depths of the Torah. This is what Ben Azzai was lacking.

This is the explanation of the Gemora. One who is not married is akin to living without Torah. He may have more time for Torah study, but he is lacking the inner contentment which is a prerequisite for Torah.

Perhaps this can explain what caused Reb Wolf Eiger to celebrate the wedding of his nephew Reb Akiva Eiger even though the bride and the groom were not present; in fact, they were miles away. Reb Wolf understood that the marriage of Reb Akiva Eiger will result in his becoming the Reb Akiva Eiger that we know now. The wedding was not only a private joy for the families of the bride and groom, but rather, it was a simchas hatorah; a celebration in the honor of Torah. Reb Akiva Eiger’s Torah would spread throughout the world. This could be celebrated anywhere, even without the choson and kallah.

HALACHOS OF THE DAF


A Husband and Wife Die in a Building

The Shulchan Aruch (Even Ha’ezer 90:6) rules in accordance with Beis Hillel. In the case where both the husband and wife die due to a building collapsing and it’s not clear who died first, the halachah is that the kesuvah goes to the inheritors of the husband; the nichsei melog to the inheritors of the wife, and the nichsei tzon barzel they split evenly. Obviously this only applies if they didn’t have children together, for if they did, it wouldn’t make a difference who died first, since the children would inherit everything.

Although a woman normally needs to take an oath (that she never collected it yet) in order to collect nichsei tzon barzel (ibid 96:1), in this case, we allow her, and now that she died - her inheritors collect it. Since the reason why a woman needs to take an oath is because we are suspicious that she might have taken some items before he died, in our case, where he died suddenly, we don’t assume that she took anything (Celkas Michokek).

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Yahrtzeit; Paying a Father's Debt; Davar shelo ba L'olam

A Yahrtzeit

Rabbi Meir Shapiro, the founder of the Daf Hayomi passed away on the day that those who were studying the daf during that cycle were learning Kesuvos 91.

The Gemora states: The orphans have a mitzvah to pay the debt of their father.

Hundreds of Reb Meir Shapiro’s students, who viewed themselves as only children of their beloved Rebbe swore by his coffin that they would continue building the illustrious Yeshiva of their Rebbe spiritually and financially. It was in this manner that they felt that they were paying the debt of their father; continuing his legacy.

And so it was. For the next six years, until the Holocaust, his Yeshiva flourished; his spirit was present in the walls of the Yeshiva, and served as a tremendous influence to all of his disciples.

Mitzvah to Pay the Father’s Debt


By: Reb Avi Lebowitz

Tosfos explains that the concept of their being a mitzvah on inheritors to pay the debts of their fathers depends on a few variables:
a. whether the father left them property from which to collect.
b. whether a debt without a contract is collectible from the orphans.
c. whether the orphans inherited anything from their father.

1. If the father leaves over property on which there is a loan with a contract - the orphans have a mitzvah to pay and we force them in beis din to pay.

2. If the father doesn’t leave over property - the orphans have a mitzvah to pay, but we don’t force them to pay [Rashash points out that the Shulchan Aruch (107) rules like the Hagahos Ashri that if the father doesn’t leave over anything, they don’t even have a mitzvah to pay at all].

3. If the father leaves them property on which there is a verbal loan, it depends: One opinion holds that a verbal loan is collected from orphans, so we force them to pay. But according to Rav and Shmuel that a verbal loan isn’t collected from orphans, they have a mitzvah to pay but we don’t force.

Perhaps the concept of forcing the orphans to pay is under the rubric of forcing for positive mitzvos. This seems to be supported clearly by Tosfos who quotes this Gemora not only for the reason that one must repay their own debt, but to justify why we force orphans to pay their fathers debt (when it is a contractual debt and he leaves over property). The difficulty is: if we force for mitzvas aseh, why don’t we force in all situations where they have a mitzvah to pay, even when he doesn’t leave over property on which there is a lien?

Conveying Properties that are not in Existence

By: Meoros HaDaf HaYomi

Our sugya says that this principle applies to dinei mamonos [cases involving monetary matters]. As long as an article is nonexistent, it cannot be acquired (C.M. 209:4). However, under certain circumstances, when a kinyan [an act of acquisition] is made for something nonexistent, the seller must carry out the transaction.

Two Jews, one a Turkish chacham and businessman and the other captain of a cargo ship, went to the Maharit for a ruling. The Turkish chacham told the Maharit that he had recently signed a contract in which he had committed to sell four hundred skins to the captain. Now, after the chacham had reneged on his side of the deal, he argued that he had never been obligated to deliver the goods. He only intended to sell skins that were nonexistent at the time of sale and therefore the transaction is null and void since “nonexistent items cannot be sold.”

However, the Maharit ruled that the chacham could not use this excuse to sidestep his obligation. We can differentiate between selling a nonexistent article and obligating oneself concerning such an article. Although the sale of the nonexistent item is invalid, this is because there is nothing tangible for the sale to take effect upon. However, an obligation to sell such an article is binding because the obligation lies upon the person, who does exist. We regard his obligation as a monetary debt in the form of an object. The monetary debt is binding, for surely one can undertake to give money to someone else (see Ktzos HaChoshen 203:4).

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Kinyan Kesef

The Mishna had stated: If a man verbally divides his property among his inheritors, Rabbi Elozar says that whether he is healthy or dangerously ill (he is required to make a formal kinyan to transfer his property), real property (land) can be transferred only by money payment, by document, or by an act of possession (chazakah; displaying ownership), and movable property may be transferred only by pulling (a kinyan meshichah).

This would be a proof that one may give a gift through a kinyan of money, for the words of a shechiv mei’ra are merely a gift, and yet, Rabbi Eliezer said that he may transfer property through a kinyan of money.

The Netziv points this out in his He’emek Shailah. However, he cites a She’iltos that omits the kinyan of money. The She’iltos writes that his transfer of property can be accomplished through a chazakah (propriety act), a document or chalifin (exchange), but there is no mention of money. It would seem that the Tur also holds like this.

This would be dependent on the dispute between the S”ma and the Ta”z regarding the mechanism of a kinyan with money. The S”ma holds that money is the value of the purchase and it is used as part of the payment. Accordingly, this would not apply when one is giving a gift to another. However, according to the Ta”z, who holds that money is an act of acquisition similar to others; one can use the kinyan of money to acquire a gift.

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