Bequeathing to One Son

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Rava said: Rabbi Yochanan ben Berokah’s reason is based upon the following verse: It shall be on the day that he bequeaths to his sons. This indicates that the Torah gave authority to a father to bequeath to whom he desires to inherit his estate.

It is brought in the Sifri that the father has such a right even on prospective property, i.e. those that he does not currently own, but they will become his. He can say that he wants property that is not actually in existence yet to be inherited by whomever he desires. Reb Akiva Eiger, however, cites the R”if, who holds that the father cannot give away property that is not yet in existence.

There is another dispute regarding this halachah: The Nesivos quotes a Rit”va, who holds that the father may retract from this stipulation up to the moment he dies. The Ketzos Hachoshen disagrees.

The Mikdash David explains these two arguments with the following chakirah: When the father bequeaths his property to one of the sons, is he establishing that this particular son is his sole inheritor, or are all the children inheritors; the father is merely designating this property that it should belong to this particular son?

If the father is establishing that this particular son is his sole inheritor, this stipulation will be effective even on property that is not yet in existence, for once this son has been established as the inheritor, he will inherit whatever potentially should have belonged to the father. If, however, he is merely designating this property to belong to one of his sons, he can only do that on property which currently belongs to him.The same can be said regarding retraction: If the father is establishing that this particular son is his sole inheritor, he cannot retract from that (he may, however, in the future, add other inheritors, for he is not taking away the inheritor status from this son). If, however, he is merely designating this property to belong to one of his sons, he may retract up until the moment that they actually take possession of the property.

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A New Thief

Rabbah ruled: If someone stole a barrel of wine from his fellow and it was worth one zuz at the time it was stolen and four zuzim at the end (when it was destroyed), the halachah is as follows: If he broke the barrel or drank the wine, he would pay four (for up until the time of destruction, it belongs to the owner; the thief would have been obligated to return the barrel which was worth four zuzim; if he directly destroys it, he pays four). If it broke by itself, he pays one (for that is what it was worth at the time it was stolen).

The Ketzos Hachoshen explains that the reason he must pay four zuzim when he breaks it or drinks it is because he is regarded as a damager, and he pays for the object’s value at the time of the damage. It cannot be considered stealing at that time, for once an object has left the possession of the owner and enters the thief’s domain, there can be no more responsibility for stealing. This is because it is written: and it was stolen from the owner’s house. The Gemora learns from there that something cannot be stolen if it is in the house of the thief. Here, where, at the time it was damaged, it was in the thief’s domain, there cannot be a new “stealing.” This would be similar to one who steals from a thief, where the halachah is that the second thief is exempt from paying the principle. Therefore, in our case, when the thief breaks it or drinks it, he can only be liable for damaging it, not for stealing it.

The Nesivos Hamishpat disagrees and holds that while it is true that one who steals from a thief is exempt from paying the principle and he is not regarded as a thief, that is only when he did not add anything to the original thievery. This is why the second person cannot be regarded as a thief. However, if he caused a change to the stolen object, he has added to the thievery and can now also be regarded as a thief. Therefore, when the thief breaks it or drinks it, he has added to the original stealing by the fact that he has destroyed the object. He is therefore responsible on account of stealing.

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Exemption when One Admits to a Fine

The Gemora (Bava Kamma 64) asks: According to the opinion (63b) who holds that one verse teaches us about the thief himself and the other deals with a custodian who alleges that the object he was watching was stolen and we find that he stole it himself, and he derives the law about the thief himself from the verse, “If the thief will be found,” what does he derive from the verse, “If it will be surely found?”

The Gemora answers: He understands the verse is required for the teaching of Rava bar Ahilai, for Rava bar Ahilai says: Why does Rav say that if a person admits to a fine (which a person by Torah law does not have to pay based on his own admission) and then witnesses come and testify to his guilt that he is still exempt from paying? This is as the verse states, “If it will surely be found.” This teaches us that if it was first revealed with witnesses he should then be decided as guilty by the judges. This excludes a case where he admitted his guilt. [He will be exempt from paying the fine even if witnesses come later.]

Does this ruling apply only in the Beis Din in which the person admitted to the fine, or does it apply even where witnesses testify in a second Beis Din against him?

The Ketzos Hachoshen (350:2) writes that when one is exempt from liability after admitting to a fine, it is not as if the obligation is cancelled; rather, the halachah is that Beis Din cannot obligate him to pay after he has incriminated himself. Therefore, the exemption applies only in the Beis Din in which he admits. If, however, he admitted in one Beis Din and afterwards he was sued in a second Beis Din and witnesses testified against him, the second Beis Din may obligate him to pay the fine. And similarly, if witnesses testify against him in one Beis Din but they did not complete the judgment, and then he is taken to a second Beis Din where he admits to the fine, he will be exempt from paying, since witnesses had not testified in the Beis Din where he admitted, and the Beis Din where he admitted cannot make him liable, for he incriminated himself.

The Nesivos Hamishpat disagrees and maintains that once a person admits to a fine in one Beis Din, he no longer can be obligated to pay even if witnesses testify against him in a different Beis Din. He also holds that in a case where witnesses testify against him in one Beis Din but they did not complete the judgment, and then he is taken to a second Beis Din where he admits to the fine, the second Beis Din cannot obligate him to pay, but it is not because the halachah of admitting is dependent upon Beis Din. Rather, it is because that as long as a verdict has not been reached, it is still regarded as a fine, and therefore, if he admits before a second Beis Din, they cannot obligate him to pay, for he has incriminated himself. However, if witnesses will testify against him in the second Beis Din, he will be liable to pay.

The Nesivos evidently holds that once he admits to the fine and is exempt from paying, the debt is completely cancelled and a second Beis Din cannot make him liable to pay any longer.

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Validity of Signatures

The Mishna had stated: The witnesses sign the get to benefit the public.

The Gemora asks (Daf Yomi: Gittin 36a) : Do the witnesses only have to sign on the Get because of “Tikun Ha’Olam” – “benefiting the world?” This is a Torah law! This is evident from the verse, “And it should be written in a document and signed!”

Rabbah says: The Mishna’s statement is needed according to Rabbi Elozar, who holds that the witnesses for the giving of the document cause the document to take effect. Even according to him, Chazal instituted that witnesses should also sign the Get because of tikun ha’olam. This is because there are times when the witnesses of the giving of the Get might have died or went overseas (and at least the witnesses signed will be able to contradict the ex-husband in case he claims that he did not divorce her).

Rav Yosef says: Even according to Rabbi Meir (who holds that the witnesses for the giving of the document cause the document to take effect), they decreed that witnesses should specify their names in a Get, due to tikun ha’olam. This is as the braisa states: Originally, people would sign, “I, So-and-so (without writing his name), have signed as a witness.” If there was a different document with the same handwriting that was verified to be authentic, this document would also be valid. If not, it is not valid. Rabban Gamliel said: They made a great decree when they instituted that witnesses should specify their names in a Get, due to tikun ha’olam.

The mefarshim ask on the Rambam in Hilchos Edus (3:4), who states that the requirement for witnesses to sign on a document is only mi’divrei sofrim (a Rabbinical obligation). The Gemora expressly states that this is a Biblical requirement!?

The Megillas Sefer answers that when the Gemora states that it is Biblically required, it is not being completely accurate, for the verse where this obligation is derived from is a verse in Yirmiyah. The Gemora only meant to ask that from the Mishna it would seem that the witnesses sign only because of Rabban Gamliel’s decree, when in truth, this was established generations beforehand!

The Pnei Yehoshua answers that it is only a Biblical requirement according to Rabbi Meir, who holds that the witnesses who sign the document are those who render it effective. However, the Rambam rules in accordance with Rabbi Elozar, who holds that the witnesses who observe the delivery of the document are those who render it effective. Therefore, the Rambam writes that the signatures are only a Rabbinical requirement.

The Nesivos Hamishpat, Chasam Sofer and others answer that the Rambam is only referring to proof documents, since the witnesses are obligated to testify in Beis Din so that the judges will have the ability to cross examine them. Testimony is valid only from the mouths of the witnesses, but not on the basis of any documents or writings. However, regarding a document that is made to affect something, either a marriage, divorce, sale etc., the Rambam will agree that the signatures of the witnesses are Biblically required.

Reb Chaim Brisker adds that a document, like a get, which later will be used as proof that the woman got divorced can still be Biblically valid. For once the document rendered an effect, it is as if it has been investigated in Beis Din, and would not any longer be disqualified because of the rule that testimony must come from their mouths and not from their writings.

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Selling a "Runaway" Slave

The Gemora (Daf Yomi: Gittin 13a) explained the dispute between Rabbi Meir and the Chachamim as follows: The Gemora explains: Rabbi Meir said to them: You have answered me with regard to his food (the master has a right not to provide him with food), but you have not answered me with respect of terumah (if his master was a Kohen, he will lose the ability of eating terumah)! And if you will answer me that the master, if he wanted, could throw the document to the slave (against his will) and thereby disqualify him from eating terumah, this is not correct because the slave can run away and the master will not have the option to free him (and therefore the slave can still eat terumah)! For if the slave of a Kohen ran away (and he could not be found to free him), or the wife of a Kohen rebelled against him (and she could not be found for him to divorce her), would they not be able to still eat terumah! This slave (if someone is acquiring the document for him), however, will not be able to eat terumah!

Rava explains the Chachamim’s response in our Mishna: It is because the slave is the master’s property. The meaning is as follows: The master, if he wants, could take four zuzim from a Yisroel (selling the slave to him), which would thereby disqualify the slave from eating terumah (even if the slave runs away)!

The Reshash asks: How could the master sell his slave who ran away? This should be akin to one who stole an object from his friend. The owner is unable to sell it because it is not presently under his jurisdiction. Here too, the slave is not presently under the control of the owner!

He answers that here it is different. The slave fled from the master because he wants to remain a slave. He is therefore still regarded as being under the jurisdiction of his master.

Furthermore, the halacha is that land cannot be halachically stolen, and a slave which is compared to land has that halacha as well. Therefore, the slave, no matter where he is, would still be regarded as being under the control of the owner.

The Ayeles Hashachar answers: Since the slave is required to return himself to his master, it is considered as if he is still under his jurisdiction.

The Dvar Avraham writes that this question can be answered according to the Shitah Mikubetzes in Bava Kamma (33b). The Shitah says that if someone sells an item that was not under his control, but afterwards, it came into his jurisdiction, the sale is effective retroactively. Here too, if the slave is returned to the master, at that point the sale will be effective.

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Food and Medicine for the Slave

*** Rabbi Yochanan said (Daf Yomi: Gittin Daf 12b) : If a man cuts off the hands of his friend’s slave, he pays the loss of earnings and the doctor bills to the master, and that slave receives his food from charity.

The Gemora explains that Rabbi Yochanan is discussing a case where the master is providing food for the slave, and he is taking from charity for the extras.

Rashi explains that the slave requires additional food because of his medical condition.

The Nesivos Hamishpat writes that the additional food will speed up the recovery process. This, the slave must pay for himself. The damager is not required to pay for that.

The Chazon Ish disagrees: He states that if this additional food will be beneficial to improve his medical condition, he would not have to pay for it himself; it would be included in the doctor bills. Rather, the Gemora is discussing the delicacies which are given to a sick person in order to cheer him up. This is not included in the medical bills.

*** The Gemora concludes that the master can say to the slave, “Work for me, but I will not sustain you.”

Reb Yechezkel Abramsky explains that the master is not completely exempt from sustaining the slave when he is working for him. The master has the right to tell him that he should worry himself with regards to his food. This is why Tosfos says that during a famine year, where people will not have pity on the slave and he will not be able to find food, the master is obligated to feed him, and if he doesn’t, the slave can demand his freedom.

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