YAAKOV’S ACQUISITION OF CATTLE

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It is written [Breishis 30:43] regarding Yaakov Avinu: And the man increased exceedingly, and had large flocks (sheep), and maid-servants and men-servants, and camels and donkeys. It is not mentioned in the Torah that Yaakov had cattle. Why not? We see that Yaakov sent to Esav cattle, as it is written [ibid, 32:6]: And I have oxen, and donkeys and flocks, and men-servants and maid-servants; and I have sent to tell my lord, that I may find favor in your sight. A few verses later, we also see that Yaakov had cattle. It is written [ibid, v. 8]: And he divided the people that were with him, and the flocks, and the herds, and the camels, into two camps. Yaakov sent cattle to Esav, as it is written later in the same Perek. Perhaps one can answer that Yaakov acquired the cattle afterwards; if so, the question may be asked: Why didn’t he acquire cattle beforehand?

The Gemora in Yevamos (16a) relates the following incident: Yonasan the son of Hurkenas met Rabbi Akiva. He questioned him and silenced him. He asked him, “Are you the Akiva whose name is known from one end of the world to the other? You are fortunate indeed to have merited such a name, but you have not yet reached the level of an oxherd.” Rabbi Akiva replied (with humility), “I have not even reached the level of shepherds.”

It is evident from here that it is more difficult to be an oxherd than a shepherd. One does not need to be so careful when watching sheep – he has to watch that the sheep do not graze in other people’s fields. When one is watching cattle, he must be concerned that the cattle do not damage other animals or people. This is not a simple task, as the Gemora states: Rav Papa says that the half damages that an ox-owner is required to pay if his animal gores are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation).

If one takes the animals that he is entrusted to watch into a desert, a place where there are no private fields, watching sheep there is almost effortless; he does not need to be cautious at all. However, he still must be vigilant in his guarding of the cattle, lest they damage other animals or people, for it is common for there to be other animals and people in a desert.

Yaakov did not want to watch Lavan’s cattle, for he was worried that the cattle will cause damage and Lavan would not be willing to pay for the damages. He was able to tell Lavan that he does not posses the expertise necessary to watch cattle. This excuse was only possible if he did not have cattle of his own. He did not acquire cattle until after he departed Lavan’s house, for now, if his cattle would damage, he would be liable, and he would certainly compensate anyone for any damages cause by his animals. (Igrah d’kallah)

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Is it Natural for an Ox to Gore?

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It was stated (Bava Kamma 15) : Concerning the payment of half damages (which are paid when a tame ox gores another animal; if the ox did not gore three times, it is regarded as an abnormal act and the animal was not intending to inflict damage; this is called a tam), Rav Papa says: This is regarded as a compensation payment. Rav Huna the son of Rabbi Yehoshua says: The half damages are considered a fine.

The Gemora explains: Rav Papa says that the half damages are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation). Rav Huna the son of Rabbi Yehoshua says that the half damages are considered a fine, for an ordinary ox is considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be exempt completely from paying for its damages. The Torah penalized him and ruled that he is required to pay half in order that he will watch his ox better in the future (hence the half damages are considered a fine).

Reb Dovid Pervarsky writes that this is not a factual dispute if ordinary oxen are accustomed to gore or not. Rather, the argument can be explained as follows: Rav Papa maintains that it is inherent in the nature of an ox to gore. Sometimes it will not gore because it does not feel the desire to gore at that time. When the animal does gore, it is not considered an abnormality at all. Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; when it does gore, it is regarded as an abnormality.

Reb Dovid is not comfortable with this explanation of the argument, for the Gemora’s language is that an ordinary ox is not considered guarded; if the animal is not goring (for whatever reason), it should be considered “guarded”!?

He therefore concludes that this is the explanation: Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; if it does gore, it cannot be labeled as a “damager,” since the ox was considered guarded. Rav Papa, however, maintains that it is in the nature of an ox to gore, and when it gores, it can be labeled a “damager.” This is what obligates the owner to watch his animal even though it is not accustomed to goring.

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Spending Money for a Mitzvah

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Tosfos (Bava Kamma 9b) writes that it is evident from our Gemora that a person is not obligated to give up all of his possessions in order to fulfill a mitzvah, and even for a mitzvah that will pass in time, such as an esrog. It is further evident from the conclusion of the Gemora that one is not even obligated to give up a third of his possessions in order to fulfill a mitzvah. And furthermore, it is said regarding charity: One who gives liberally to charity should not give more than a fifth of his money, for then, he will be forced to beg for support himself.

All Mitzvos

The Rosh writes that this halacha applies by all mitzvos; one should not spend more than a fifth of his wealth on any specific mitzva, such as esrog or lulav. The Rambam and Rema seem to rule accordingly.

Why not Spend?

The Rishonim ask: Why would someone be exempt from performing a mitzvah just because it costs more than a fifth of his wealth? The Ra’avad answers that this is similar to halacha that one should make his Shabbos like an ordinary weekday, and not be forced to be supported from charity. This is because poverty is regarded as death, and one is not obligated to give up his life for an ordinary mitzvah.

The Biur Halachah writes (in his explanation of an opinion from the Beis Yosef) that not all mitzvos are compared to charity, for charity is a mitzvah that will not pass in time, and even if the poor people are before him, they can be supported by another person. That is why one would not be obligated to spend more than a tenth of his possessions. However, with respect to a mitzvah that will pass in time, it is possible that there would be an obligation to spend more than a tenth.

Reb Yaakov Emden asks: Why isn’t there an obligation to spend more for a positive commandment? Did we not learn regarding one who does not want to fulfill a positive commandment – we beat him until his soul departs him? Do we treat his money stricter than his life?

The Maharitz Chayus answers that we only beat him until his soul departs him when he is rebelling against the fulfillment of mitzvos; otherwise, we do not beat him, and he would not be required to spend all his money for it.

Lo Sa’aseh is Different

The Ra’avad adds that this halacha applies only to a positive commandment; however, one would be required to spend his entire wealth in order not to transgress a negative precept.

Must he Spend a Fifth?

The Gemora (Kesuvos 50a) states that one should not spend more than a fifth of his wealth to fulfill a mitzvah; is one halachically required to spend up to that amount, or is it only regarded as a mitzvah?

The Beis Yosef (Y”D; 249) writes that it is considered a mitzvah in the preferable manner if one spends up to a fifth of his wealth in order to perform a mitzvah. The Beis Yosef adds that although one can imply from the Gemora that it is not even a mitzvah to spend that amount because the Gemora states: One who spends liberally should not give more than a fifth of his wealth; however, even less than that would be regarded as spending liberally, and there would be no mitzvah whatsoever to spend that amount. Nevertheless, there is a Yerushalmi in Pe’ah that seems to indicate that there is a mitzvah to spend up to one-fifth of his wealth for a mitzvah.

In the sefer Ahavas Chesed, the Chafetz Chaim cites a Rambam in his explanation to the Mishnayos, who writes that there is a halachic obligation to spend up to one-fifth of one’s wealth for charity. He asks form our Gemora, which would seem to indicate that there is no such obligation. He answers that our Gemora is discussing a case where the poor people are not present and someone is searching to find them in order to give them charity. In such a situation, there is not even a mitzvah to give up to one-fifth. However, the Yerushalmi and the Rambam are speaking about a case where the poor person is in front of you; then, there would be a halachic obligation to give up to one-fifth.

Spending More than a Fifth

What if one wants to spend more than a fifth? Is he allowed to? It is evident from the Rambam in his explanation to the Mishnayos that it is regarded as virtuous (midas chassidus) for one to spend more than a fifth. However, it can be inferred from the Rambam in halachos that one should not spend more than a fifth of his wealth on a mitzvah.

The Chafetz Chaim reconciles the two rulings of the Rambam in the same manner as before. If the poor person is present, it would be regarded as midas chassidus to spend more than a fifth, and that is what the Rambam in his explanation to the Mishnayos is discussing. However, when the poor people are not present and one is chasing after them, he should not spend more than a fifth.

The Shitah Mekubetzes writes that one is permitted to spend more than a fifth of his wealth if it is to support the studying of Torah. The Ahavas Chesed explains the reasoning for this. One who supports another fellow to learn Torah is creating a partnership with him; the supporter receives a reward together with the one who is learning the Torah. One is permitted to purchase this reward for himself even if it will cost him more than a fifth.

Reb Moshe Feinstein (Igros Moshe (Y”D, 4:37) rules that this is correct only if the supporter specifically negotiates with the one studying Torah to create a partnership of Yissochar and Zevulun. However, if the provider is just donating money to support Torah, he is not permitted to give more than a fifth.

The Ibn Ezra in Mishlei (4:7) writes that one is permitted to spend more than a fifth of his wealth in order to study Torah himself. The Chafetz Chaim in Likutei Halachos (Yoma 12a) also rules like that. However, the Netziv in the Shiltos states that this is a matter of dispute between two Amoraim. The Gemora in Eruvin cites the verse that Torah is not in the Heavens. Rav Avdimi says: If it would be in the heavens, one would be obligated to go there and learn. It is evident that one would be forced to spend more than a fifth of his wealth to study Torah, for otherwise, he could claim that it costs too much to travel to the Heaven. However, Rava disagrees regarding the interpretation of that verse, and according to him, one would not be allowed to spend more than a fifth in order to study Torah.

The Rema (Y”D, 249:1) seems to hold that one can give away more than one-fifth of his wealth to charity right before he dies. It is brought in the name of Rabbeinu Yonah that even then, he should not.

It is written in Ahavas Chesed that one who is a free-spender in regards to himself and his family, i.e., he splurges on expensive clothing, builds for himself a fancy mansion and generally leads a luxurious lifestyle; it is permitted for him to give to charity more than a fifth of his wealth.

Some say that if one finds himself in dire straits, he is permitted to spend more than a fifth with the intention that it should be on account of this deed that he will merit a salvation. It is brought in the name of the Bnei Yissoschar that one who requires atonement on a specific sin is also permitted to give away more than a fifth.

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Discretion of the Judges - Kiddushin 74

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The braisa continues: A judge is believed to say the following: “I found in favor of this person, and I found against this person.” This is only true if the litigants are still standing before him (for then, he is still responsible to remember how he ruled); otherwise, he is not believed.

The Gemora asks: But let us check to see who is holding the document in which it is written that the verdict was in his favor?


The Gemora answers: The braisa is referring to a case where the document was ripped up.

The Gemora asks: Why don’t we just rejudge the case?

The Gemora answers: The braisa is referring to a case where it was decided based upon “the choice of the judges” (and we therefore are concerned that he will not reach the same verdict the second time).

The Gemora in Kesuvos (85a) cites the following dispute: If a person sold the same field to two people on the same day, Rav says they should split the field, and Shmuel says the law is the choice of the judges (they should decide who to give it to).

The Rishonim disagree as to the method that the judges should use to give one of the claimants the entire field. Rashi explains that “the choice of the judges” means that the judges choose to whom the property in question should be given by attempting to determine, based on logical considerations, to whom the seller would have preferred to give the field.

Tosfos argues with Rashi and maintains that “the choice of the judges” means that the judges give the field to whomever they please. They need not base their decision on whom they think the seller preferred, but rather, they base their decision on whatever considerations they deem appropriate, such as which of the two claimants needs the property more, or which one is a Torah scholar.

The Gemora maintains, at this point, that in general, it is preferable to resolve the case with “the choice of the judges” rather than to split the property, because by using this method, there is at least a possibility that the correct person will receive the entire field. Therefore, according to Shmuel, the judges give the entire field to one of the two claimants.

Kollel Iyun HaDaf discusses why Rav would disagree and hold that the property is divided because of the witnesses’ signatures.

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Perhaps they Repented - Kiddushin 63

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The Gemora inquires: Would we execute someone by stoning (if she has relations with a man) based upon the father’s testimony (that he married her off)?

Rav said: We would not. We only believe the father with respect to a prohibition, but not for execution. Rav Assi said: We would. We believe the father for everything.

Rav Assi admits that if she would say, “I got married,” we would not stone anyone.

Rav Assi notes the apparent contradiction in his rulings: If in a case (the father said that he married her off) where we believe a man that he is able to marry her (if he comes saying that he was the one who married her), and we rule that we would execute someone by stoning (for having relations with this woman). Then, in a case (where she was the one who said that she got married) where we do not believe a man to marry her (if he comes saying that he was the one who married her), shouldn’t the halachah certainly be that we would execute someone by stoning (for having relations with this woman)!?

Rav Assi answers: There is a clear distinction. The Torah believed the father, but not her. [The only reason that she is forbidden to every man is because of the principle of “shavya anafshei chaticha d’issura” i.e. she has made for herself a forbidden piece; she is compelled to abide by her declaration.]

The Maharik (shoresh 33) writes concerning a case where one witness testifies that a certain shochet was slaughtering improperly and the shochet himself contradicts the witness; since the witness is not believed, he himself is permitted to eat all future meat slaughtered by this shochet. This is not comparable to a case where a witness testifies regarding wine that is forbidden on account of it being yayin nesech because here there is a possibility that the shochet will repent and slaughter properly.

The Pri Chadash (Y.D. 1, 14) asks: Why don’t we apply the principle of “shavya a’nafshei chaticha d’issura,” one who states that something is forbidden, even if he is not believed in respect to everyone else, renders the object forbidden to him (as is evident from the Gemora in Kesuvos 9a)? All the meat slaughtered by this shochet should be forbidden to this witness!?

The Pri Megadim (Sifsei Daas, ibid, 41) answers that the Maharik is referring to a case where the witness retracted and said that he had testified falsely. In such cases, the principle of “shavya a’nafshei chaticha d’issura” does not apply.

Rav Elyashiv answers: The reason why one can render the object forbidden with the principle of “shavya a’nafshei” is not because he is believed in respect to himself; rather, it is because it is regarded as an oath. The witness is taking a vow forbidding himself from this particular object. Accordingly, he explains that the witness who testified regarding the shochet it making a vow that he will not eat the meat from this animal, however, he will not be prohibited, on account of his vow, against eating from any other animal that this shochet slaughters.

The Mishna Lemelech (Hilchos Shechitah 1:26) challenges the ruling of the Maharik from a Gemora (Kesuvos 44a) which discusses a case where two deeds were given over regarding the same field. The ruling is that the second deed cancels the first one. Rafram explains that the recipient has admitted to the other that the first deed is invalid. Accordingly, the Gemora continues that these witnesses must be regarded as legally unfit for further evidence concerning this recipient since he is stating that they put their signatures to an invalid document. We do not say that they should be valid witnesses later, for perhaps they repented. What is the difference between the two cases?

The Shaar Hamishpat (92:7) answers: The Maharik rules that all meat slaughtered by this shochet will be permitted to eat by the witness because there is a double doubt; perhaps, he has slaughtered the animal properly and perhaps he repented. Just because he slaughtered improperly (according to the witness’ testimony) one time, it is not logical that we should prohibit his slaughtered meat forever. However, in respect to testimony, once the recipient has stated that these witnesses testified falsely, they will be disqualified to offer testimony for him forever. Even according to those that hold that we can apply the principle of a double doubt in regards to monetary judgments, here, it will not apply. What can be said? Perhaps the witnesses will testify truthfully and perhaps they repented. This logic is not applicable by testimony, for testimony functions as a proof, and if we are uncertain if the witnesses repented or not, they cannot be accepted as witnesses because we have no proof that they are testifying truthfully. Therefore, they will not be believed for all future testimonies regarding this recipient.

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Ransoming for more than their Value

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The Mishna (Daf Yomi: Gittin 45b) had stated: We do not redeem captives for more than their true value for “the benefit of the world.”

The Gemora inquires: Does “the benefit of the world” (with respect to redeeming the captives for more than their worth) relate to the burden which may be imposed on the community (they will all become impoverished), or to the possibility that the bandits will take more captives? [The difference would be in a case where a private individual, such as a relative, wishes to redeem him.]

Come and hear: Levi ben Darga ransomed his daughter for thirteen thousand golden dinars.

Abaye asked: But are you sure that he acted with the consent of the Sages? Perhaps he acted against their will!

Rashi explains that “more than their true value” is referring to the amount that they would fetch if they would be sold in the slave market.

The Meiri writes that their value is based upon their individual wealth and prominence.

The Radvaz rules that we may ransom any captive with the amount of money that is usual to redeem other captives during that time period.

He adds: It has become the custom to redeem captive for more than their worth in the market, for an elderly person or a minor are not worth more than ten dinars, and nevertheless, they are ransomed for more than one hundred dinars. His explanation why there is no concern that the bandits will take more captives is because the captives are not being ransomed for any more that their gentile counterparts. He concludes that nothing should be told to Klal Yisroel about this, for they are a charitable nation, and it is better for them to remain that way.

Tosfos and the Ramban disagree regarding the halachah if the captive himself is allowed to ransom himself for more money than he is actually worth.

The Gemora in Kesuvos (52b) states: If one’s wife was captured and the kidnappers sought ten times her fair value for redemption, the first time the husband must redeem her. Afterwards, if he wants he can and if he does not want he does not have to. Rabban Shimon ben Gamliel states that we do not redeem captives for more than they are worth for “the establishment of the world” (that captors should not thereby be encouraged to demand exorbitant prices for the ransom of their captive).

This issue had an extraordinary public application about 700 years ago. The leader of Ashkenazic Jewry at the time was Rabbi Meir ben Boruch of Rottenberg. He was imprisoned by a German ruler, Rudolph, whose voracity knew no bounds. Rabbi Meir (known as Maharam Mi’Rottenberg) was imprisoned until his death, and his body was not released. The community did not ransom him, as he himself had ruled. Seven years after his death, a private member of the community paid almost all of his own money to release the body, with the stipulation that he be buried next to him.

There is a question whether according to Rabban Shimon ben Gamliel a man would be permitted to ransom his wife if the ransom exceeds her worth. The Ritva holds that he may do so, and the Chelkas Mechokeik disagrees.

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Eliezer the Slave

Rabbi Chiya bar Abba said in the name of Rabbi Yochanan (Daf Yomi: Gittin 23b) : A Canaanite slave is disqualified from serving as an agent to receive a woman’s get from her husband because he is not included in the halachos of divorce and marriage.

Tosfos in Kesuvos (7b) writes that Eliezer was the agent of Yitzchak to marry Rivkah.

The Panim Yafos asks: How could Eliezer serve as the agent for marriage, when he was not included in the halachos of marriage.

He answers that this principle is only applicable when he is serving as an agent for another person. However, a slave may serve as an agent of his master for marriage and divorce, since he is considered the hand of the master.

This explains why Eliezer began by saying, “I am the slave of Avraham.”

The Pardes Yosef asks that this does not explain how Eliezer could marry Rivkah on behalf of Yitzchak! Eliezer belonged to Avraham; not to Yeitzchak!?

He answers that this is why Avraham gave over all his possessions to Yitzchak, including his slave, Eliezer. Once Eliezer belonged to Yitzchak, he could serve as his agent.

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