Odisa

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.

HALACHOS FROM THE DAF

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

HOW MANY JEWS ARE NEEDED TO MAKE SOMETHING PUBLIC?

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.”

HALACHOS FROM THE DAF

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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Converts

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Converts are like Sapachas

Rabbi Chelbo said (Kiddushin 70) : Converts are as harmful to the Jewish people as sapachas (a type of tzara’as).

Rashi explains that this is because converts are not so meticulous in the performance of mitzvos, and those Jews who observe this behavior will become influenced by them.

Tosfos writes that each and every Jew is a guarantor for his fellow, and if converts do not perform mitzvos meticulously, they will be punished on account of them.

Tosfos rejects this explanation, for he proves that when the Jewish people accepted to be guarantors for each other, they did not accept to be guarantors for the converts as well.

Tosfos brings another explanation: They are harmful to the Jews, for it is impossible that someone will not bother them, and the punishment for this will be severe, for the Torah in twenty-four places warn the Jewish people not to bother the converts.

Tosfos brings another explanation: It is because of the converts that we are still in exile, for the Gemora says that Klal Yisroel are scattered all over the world much more so than other nations in order for there to be additional converts.

Rabbeinu Avraham the convert explains differently: It is because the converts are meticulous in their performance of the mitzvos. This shows the shortcomings of ordinary Jews.

TEACHING TORAH TO A GENTILE PLANNING ON CONVERTING
The Rambam (Issurei Bi’ah 14:2) writes that we inform the prospective convert the essentials of the faith, which is the unity of God and the prohibition of idolatry, and they go on at great length about these matters.

The Machaneh Chaim (Y”D II, 45) asks: Why isn’t this forbidden on account of a gentile studying Torah? The Gemora in Sanhedrin (59a) states explicitly that a non-Jew who studies Torah is liable for death.

He answers by citing a Medrash Tanchuma in Parshas Vayelech: The numerical value of Torah is six hundred and eleven. The remaining two mitzvos which complete the six hundred and thirteen are the two mitzvos which were given by Hashem directly at Har Sinai. This is the explanation of the verse: The Torah that Moshe commanded us to observe. Moshe instructed us regarding six hundred and eleven mitzvos; the other two were from Hashem.

The prohibition against teaching an idolater Torah is only applicable to the six hundred and eleven mitzvos that Moshe taught us. The other two, I am Hashem your God and the Unity of God; one would be permitted to teach to them. This is where the Rambam derived his ruling from; we can go on with great length discussing the unity of God and the prohibition of idolatry.

The Maharsha (Shabbos 31a) writes that it is permitted to teach Torah to an idolater who wishes to convert. He proves this from the incident with Hillel and the convert.

Reb Akiva Eiger (41) disagrees and maintains that it is forbidden to teach Torah to an idolater even if he is planning on converting. Hillel taught the convert Torah only after he converted.

NOT BELIEVING A SCHOLAR
At that time, the plaintiff spoke up and said to Rav Yehudah, “Is it me that you call a slave, when, in fact, I descend from the Chasmonai family!” Rav Yehudah responded, “Shmuel has said that whoever says that he is from the Chashmonai family is in truth a slave (for Herod had killed them all out).

Rav Nachman said to Rav Yehudah, “Do you not hold of that which Rabbi Abba said in the name of Rav Huna, who said in the name of Rav: Wherever a scholar issues a halachic ruling (that was previously unknown) and such a point comes up for a practical decision, he is obeyed if he made the statement before the incident occurred, but if the statement was made only after the incident occurred, he is not obeyed (and therefore, we do not have to accept this ruling which you stated in the name of Shmuel)!?

Rav Yehudah replied, “But there is Rav Masnah who holds like me as well?” Rav Masnah was not seen in Nehardea for thirteen years, but just that day, he came before them. Rav Yehudah asked him, “Does the master remember that which Shmuel said while he had one foot on the bank of the river and the other foot was on a boat?” Rav Masnah replied, “Shmuel said, ‘whoever says that he is from the Chashmonai family is in truth a slave, for no one remained from their family except for one maiden who went up on the roof and called out with a loud voice, “whoever says that he is from the Chashmonai family is in truth a slave.” She then threw herself off the roof and died.’”

Rav Nachman declared that the man was indeed a slave. That day, they ripped up many kesuvos in Nehardea (all the married woman from that man’s family lost their kesuvos).

From Rashi’s commentary (Yevamos 77a), it would seem that the reason we do not accept the scholar’s statement is because we are concerned that he might deliberately falsify the halachah.

The Ritva forcefully disputes this. Heaven forbid that a Torah scholar would deliberately falsify the ruling. Rather, the reason why we don’t believe him in these situations is because he might make a mistake; in the excitement of the moment, it would appear to him that he remembers the tradition in one manner, when in fact, it is really the opposite.

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Follow the Father - Kiddushin 67

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The braisa states: How do we know that if a male from any nation (other than the seven nations of Canaan, where by the other nations, the prohibition of “you shall not spare the life of any soul” does not apply) cohabited with a Canaanite woman (where the prohibition of “you shall not spare the life of any soul” does apply) and had a child; one is permitted to purchase that child as a slave (for he follows the father’s nationality and we are not obligated to kill him)? The braisa answers: It is written [Vayikra 25:44]: And also from among the children of the residents who live with you, from among them you may purchase slaves. One might have thought that even if a Canaanite male cohabited with a woman from any of the other nations and had a child; one would be permitted to purchase that child as a slave. It is therefore written [ibid.]: ….whom they begot in your land. The Torah teaches us that one may purchase slaves only from those who were born in your land to Canaanite mothers from non-Canaanite fathers, but not from among those children who were born abroad to non-Canaanite mothers from Canaanite fathers, and who later returned to reside in your land with their fathers.

The Minchas Chinuch writes that the halachah of following the male by the other nations is only if the child was born from an idolater woman; however, if she converted while she was pregnant, the child is legitimate and he does not follow the father, provided that the mother is permitted to join the congregation. He adds that even according to those who hold that the fetus is not regarded as the “thigh of the mother,” nevertheless, the lineage of idolaters is determined only after their birth, but as a fetus, they are not accorded the status of the father. And therefore, in this case, the child was born as a Jew, and therefore he follows the mother.

This halachah is applicable even in a case which causes us to rule stringently. If the father would be from a nationality which is permitted to join the congregation and the mother was an Egyptian woman, and she converted while she was pregnant, the child will be accorded the status of its mother and would therefore be ruled to be a second-generation Egyptian.

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Kiddushin with a Slavewoman

Rav Nachman bar Yitzchak (Daf Yomi: Gittin 40b) explains the braisa to be dealing with the following case: The master told her, “Become free with this deed (of betrothal) and be betrothed to me with this.” [In this case, she was obviously not freed from beforehand.] Rabbi Meir holds that this expression (be betrothed) includes emancipation (for she cannot become betrothed to him unless he frees her first), and the Chachamim maintain that it does not include emancipation.

Tosfos in Yevamos (47b) asks: How can the kiddushin be effective if the slave did not immerse herself in a mikvah beforehand? The halachah is that after a slave becomes free, he is immersed in a mikvah to become a complete Jew. If so, this woman is still a slave, and kiddushin is not effective with a slave!?

Tosfos answers that we are dealing with a case where she immersed herself prior to the kiddushin.

The Nimukei Yosef states that the requirement for this immersion is only Rabbinical, and therefore, the kiddushin will be Biblically effective even if she did not immerse beforehand.

Reb Chaim Brisker asks that both of these answers will not resolve the issue according to the Rambam. He proves that the Rambam holds that this immersion is a Biblical requirement. This is because the Rambam maintains that this immersion is a completion of her conversion process. If so, asks Reb Chaim, it is obviously a Biblical requirement and it also cannot be done before she becomes free, for it is part of her conversion process and that can only be accomplished after she becomes free! How would the Rambam understand our Gemora? How can the kiddushin be effective with a slavewoman?

He answers as follows: A freed slave requires immersion in order to accept upon himself those halachos that he was lacking while he was still a slave, for at that time, he was not a complete Jew. This, however, has no bearing on the fact that kiddushin is not effective with a slave or a slavewoman. That, the Gemora in Kiddushin (68a) explains is because a slave does not have any lineage (yuchasin). A slave, in this respect, is inferior to an idolater, for an idolater does have lineage. As soon as the slave is freed and he is no longer a slave, he does have lineage, even though his conversion was not completed, for even an idolater has lineage. It is for this reason that kiddushin can be effective in this case even though she did not immerse in the mikvah yet. For in order for the kiddushin to be effective, it is not necessary for her to have a completed conversion; as long as she is not a slave is sufficient, and since at the moment she becomes free, she is no longer a slave, kiddushin may take effect.

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