Wild Animals and Hunting

Wild Animals
The Gemora discusses the opinions in the Mishna regarding wild animals, citing three opinions:
1. The Sages say that all animals, wild or not, are killed only if they kill, and then only in a court of twenty-three.

2. Rabbi Eliezer says that wild animals should be killed by anyone, without waiting for a court.

3. Rabbi Akiva says that only a snake should be killed by anyone, without waiting for a court, but all other animals must be killed only by a court of twenty-three.

Rish Lakish and Rabbi Yochanan differ on the terms of Rabbi Eliezer’s and Rabbi Akiva’s exceptions. Rish Lakish says these animals are only killed when they kill, while Rabbi Yochanan says that these animals are killed under any circumstances, since they are inherently dangerous.

Tosfos (15b v’Rabbi Yochanan) compares our Mishna to the Mishna in Bava Kamma (15b), which discusses which animals are presumed to be accustomed to damage, and therefore must pay full damages in all cases. The Mishna says that the Sages consider all wild animals to be accustomed to damage, while Rabbi Elozar says that they can be domesticated. However, all agree that a snake is considered accustomed to damaging. [Tosfos points out that Rabbi Elozar in the Mishna in Baba Kama is not identical to Rabbi Eliezer in our Mishna.] Tosfos asks how we can reconcile the Mishna in Bava Kamma, in which all agree that a snake cannot be domesticated and is assumed, a priori, to be dangerous, with Rish Lakish’s position in Sanhedrin, that all agree that a snake which has not killed may not be killed. Tosfos offers two answers:
1. In order to actually kill the snake, it must have proven its danger by killing someone. However, we assume any snake is potentially dangerous, and we therefore require the owner to guard the snake well, obligating him in full payment in the case of actual damage.

2. Rabbeinu Tam says that the Mishna in Sanhedrin refers to animals that were simply domesticated by training. All agree that a snake cannot be trained, and is still dangerous. However, the Mishna in Sanhedrin is referring to animals that have been restrained (e.g., by chains). Such protection is the subject of the dispute in the Mishna, and Rish Lakish’s limitation.

The Rambam (Sanhedrin 5:2) rules like Rabbi Akiva, according to Rish Lakish’s explanation.

The Rishonim point out that we rule like Rish Lakish since the Gemora brought a braisa which supports him.

The Ra’avad, however, challenges the Rambam’s ruling like Rabbi Akiva, since we generally rule like the Sages against Rabbi Akiva.

The Radvaz says that the Rambam accepted Rabbi Akiva’s special treatment of a snake, since the Mishna in Bava Kamma (15b) explicitly states that a snake is always considered in the habit of damaging.

The Rashash explains that although Tosfos distinguished between the Mishnayos, we still see in the Mishna in Bava Kamma that a snake is treated differently than other wild animals. From that case, we extrapolate to the case of our Mishna.

The Kesef Mishnah says that the Rambam ruled like the majority of opinions in each case. In the case of all wild animals except for a snake, both Rabbi Akiva and the Sages rule that a court of twenty-three is needed, while in the case of a snake, both Rabbi Akiva and Rabbi Eliezer rule that anyone should kill it. [See the Rashash for a discussion of the status of the Sages in such an analysis.]

Hunting
The Noda beYehudah (Mahadura Tinyana Y”D 10) discusses whether someone may hunt for sport. He first analyzes the potential formal prohibitions, including tza’ar ba’alei chayim – causing pain to creatures, and bal tashchis – not wantonly destroying, and says that they are not applicable to such a case. However, he states that hunting for no gain (e.g., meat or hides, or for employment) is not a Torah value, with the only examples in the Torah of such behavior being Nimrod and Esav. He raises the possibility that one may hunt and kill wild animals, in accordance with Rabbi Eliezer, who says that anyone should kill wild animals, due to their danger. He rejects this on two counts:
1. This does not fit with our ruling. We rule like Rish Lakish, who limits the Mishna to a case where the animal already killed. Even under those circumstance, we rule like Rabbi Akiva, and not like Rabbi Eliezer.

2. The Mishna is only discussing wild animals who are among people, and allows one to kill them to protect the people. However, wild animals that are in their natural habitat, not threatening people, are not considered a danger to be eliminated.

Finally, he prohibits such hunting, since the sport itself is inherently dangerous, as expressed by Esav, who told Yaakov that he is going to die young, due to his sport. Although the Torah allowed one to put oneself in danger for employment, the Torah did not allow this simply for sport.

HALACHAH ON THE DAF

Mamon Hamazik
The Gemora explains that the difference between the Tanna Kamma and Rabbi Akiva (which at first glance both Tannaim seem to be saying the same thing; a wolf, lion etc. that killed a person must be killed by a Beis Din of twenty three), is if a snake killed a person. According to Rabbi Akiva, it is not in the same category as the wolf, lion etc. while the Tanna Kamma is of the opinion that it is.

Rashi explains Rabbi Akiva according to the Mishna in Bava Kamma (15b), where there is a dispute between the Tanna Kamma and Rabbi Eliezer whether a wolf, lion etc. automatically have a status of a mu’ad (an animal which is established after three times that it damages) or not, but they both agree that a snake is always considered a mu’ad.

The Shulchan Aruch (Choshen Mishpat 389) explains the concept, possible scenarios, and their various halachic outcomes.

Any creature which is owned by a person that damages, the owner is liable to pay. This does not apply to a slave (Tur). Not all damages are paid in full, rather, only damages that can occur when the creature does an action that comes naturally to it. For example, an animal that caused damage by eating someone else’s hay, or if it stepped on items while walking, these types of cases would require the owner to pay in full, since the owner should have thought of that natural scenario and stopped his animal from damaging. In instances where the animal damaged in an unnatural way, for example, a cow that bit someone, then he only pays half of the damages.

Therefore if an animal damages three times in the same unnatural manner, then we say that this particular thing (for example biting) became natural to this animal, so the owner would have to pay for the damages in full. This is the logic behind tam and mu’ad.

However, there are six creatures (wolf, lion etc. and snake) which the Chachamim determined are naturally inclined to cause damage, even if they are domesticated, so it will make no difference as to what specific action caused the damage, for any action it does, it will have the status of a mu’ad, and therefore the owner is liable to pay in full.

However, the Rema disagrees and is of the opinion that only a snake has an automatic status as a creature that will damage through any action, but the other five are only a mu’ad for specific actions that are natural to them, for example, a lion to be doires and a wolf to be toref, but not vice versa.

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The Testimony of a Shtar

By: Reb Yonatan Sapir

The Mefarshim are bothered how does a shtar (document) work? Chazal have a rule that testimony must be said orally and not written. If this is the case, how can we rely upon the testimony of a shtar?

There are a number of different answers to this question. Rabeinu Tam says the prohibition of writing testimony only refers to someone who is mute. Anyone who can say testimony may also write testimony. This follows a principle taught by karbonos. We are commanded in the Torah to mix the meal offering with oil. Chazal tell us that it if there is enough oil that it can be mixed, the mixing is not necessary. The same is true here; as long as a person can speak, speaking is not necessary.

The Rambam is of the opinion that testimony in a shtar is only Rabbinic. According to Biblical law, a shtar is invalid. Since, however, they are necessary for the functioning of society, the Rabbis decreed that this form of testimony should be considered valid.

Rashi and the Baal HaMaor have a different explanation. They explain that a shtar is written by the person obligating himself in some fashion (i.e. a borrower or a seller). The witnesses here are not regular witnesses in a court case, rather, they are agent of an obligated party who which to obligate themselves by means of a shtar. This form of testimony is not what the Torah was referring to when it disqualified written testimony.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on the dispute mentioned above regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

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Hosting Guests is Greater than Greeting the Divine Presence

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“And Hashem appeared to him in the orchards of Mamrei, and he was sitting at the opening of the tent in the heat of the day.” What does, “in the heat of the day” mean?

Rabbi Chama the son of Rabbi Chanina says: That day was the third day after Avraham’s bris milah. Hashem came to him to see how he was doing. Hashem therefore took out the sun from its sheath, so Avraham would not be disturbed with guests.

Avraham sent out Eliezer to go look for guests, but he came back empty handed. Avraham replied to him: I do not believe you (that there are no possible guests). This is the source of what is commonly said in Eretz Yisroel: There is no credibility in slaves. Avraham went out and saw Hashem by his doorway. This is why the verse says, “Please do not go away from Your servant.”

Tosfos writes that since Avraham asked Hashem to wait until he brings the guests inside, this would indicate that hosting guests is deemed to be even greater than greeting the Heavenly Presence.

The question is asked: How did Avraham Avinu know this halachah? Perhaps greeting the Heavenly Presence takes precedence over hosting guests? [There is an answer to this given in the name of the Noda Beyehudah.]

What is so unique about this mitzvah that it overrides a Shabbos prohibition (as the Gemora in Shabbos 127a derives) and is even greater then receiving the Divine Presence?

Rabbeinu Yonah writes that one honors his friend because his friend is a creation of Hashem. When one honors the prince, in effect, he is honoring the king. This is the deeper understanding of receiving and hosting guests. When a Jew receives Jewish guests and honors them as princes, in essence he is honoring the King, Hashem.

The Maharal writes that one cannot really honor Hashem as one cannot see Hashem and live. By receiving and hosting guests, one draws closer to the Divine Presence.

The brother of the Maharal writes in Sefer HaChaim that by performing the mitzvah of receiving and hosting guests, one will be quicker to improve on his service of Hashem. A person will say to himself, “If I can do so much for my friend who is my guest, certainly I can perform the mitzvos in a more wholesome fashion.”

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As if it is in his Possession

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Rabbi Elozar said in the name of Rabbi Yishmael (Bava Kamma 29b) : There are two things which are not legally in one’s possession and the Torah views them as if they are in his possession. One thing is a pit that one digs in a public domain, and even though he does not own the public domain, he is responsible for any liability that occurs regarding the pit. Similarly, one cannot have benefit from chametz after the sixth hour on the fourteenth of Nissan, and the chametz is rendered as ownerless, but one who retains chametz after the sixth hour is considered to have violated the transgression of owning chametz when it is prohibited to own chametz.

Rashi seems to say that the chametz is regarded as his only in the sense that he is held accountable for violating the two commandments of “chametz being seen in his possession” and “leaven being found in his house.” However, he does not actually own the chametz.

Similarly, the Meiri writes with respect to the pit. If there is water in the pit, everyone is allowed to draw water from there. The digger of the pit cannot prevent them from drinking the water by saying that he is the owner, for the Torah considers him the owner only with respect to liability for the damages.

The Chasam Sofer writes that if one would have chametz on Pesach and on Pesach, he would sell it to a gentile, he still would be liable, for the Torah considers it his. And so too, the halachah would be by a pit – if a gentile would acquire the pit, it would still be regarded as the digger’s pit with respect to liability for its damages.

The Noda Beyehudah disagrees and maintains that if without the prohibition of chametz, it would not be in the Jew’s possession, we do not say that the Torah treats it as if it is in his possession.

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Shavyah A'nafshei - Kiddushin 65

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The Mishna stated: If a man said to a woman, “I betrothed you,” and she said, “You did not betroth me,” he is forbidden to marry her relatives, but she is permitted to marry his relatives.

Rashi explains the man is forbidden to marry her relatives 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.

There are several explanations to this: The Ketzos Hachoshen explains that this is based upon “believability.” A person is believed with regards to himself, when it is disadvantageous to him. He cites a Rashi on our Daf that this is comparable to the halachah of “the admission of the litigant is like the testimony of a hundred witnesses.”

The Terumas Hakeri says that this is not because he is believed, but rather, it is based upon the following logic: Since he knows that something is forbidden to him, it is incumbent upon him to distance himself from this. Accordingly, Beis Din is obligated to ensure that he does not violate any prohibition that according to his words he knows to be forbidden, for Beis Din acts with him in the same manner that he acts with himself.

The Shaar Hamelech quotes the Mahari Assad that 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.

The Maharit writes that this cannot be the reason, for if so, he should be able to annul this prohibition in the same manner that one can have his oath annulled!

The Noda Beyehudah writes that “shavya a’nafshei” cannot function like an oath because it is obvious that if one says on a Monday that “today is Shabbos,” it will not be forbidden for him to perform any labor. This is because there is no believability in this case. But, if it would be like an oath, it should be forbidden for him like any other oath!

The Chasam Sofer writes that there would be the following difference in halachah based upon the different reasons: If someone would tell Beis Din something that he knows to be false. If “shavya a’nafshei” is because he is believed in respect to himself, here, where he knows it to be false, he would be able to “transgress” his words in private. However, if it is based upon an oath, it will still be forbidden to him.

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Craftsmen Standing for Torah Scholars

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Rabbi Yochanan states (Kiddushin 33a) : They stood before those bringing the bikkurim, but not before Torah scholars.

Rabbi Yosi bar Avin explains: Come and see how precious a mitzvah is in its proper time, for the craftsmen would rise before those bringing the bikkurim, but not before Torah scholars.

The Gemora asks: Perhaps they would only rise before those bringing bikkurim (but not for an ordinary mitzvah) because if not, they will not bring the bikkurim in the future (for they will think that the people living in Yerushalayim have no respect for them).

The Pnei Yehoshua writes that although it is obvious that the studying of Torah is greater than the performance of mitzvos, and even a mitzvah which has a set time, nevertheless, here, those that are performing a mitzvah are greater than Torah scholars. This is because it is quite possible that the Torah scholar is not engrossed in learning as he is walking.

The Chasam Sofer asks: And is a Torah scholar not occupied in performing mitzvos as he is walking? The Gemora Brochos states that a Torah scholar does not walk even four amos without thinking in Torah!? Why shouldn’t they stand before him?

He answers that according to halachah, thinking in learning is not equivalent to studying out loud, and therefore it is not in the same category as one who is performing a mitzvah while he is walking.

The Noda BeYehudah answers that a mitzvah which does not apply every day is more significant than the mitzvah of studying Torah, which applies every day.

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From their Mouth's and not from their Writings

The Gemora (Gittin 71) states that testimony is valid only from the mouths of the witnesses, not on the basis of any documents. It is evident that writing is not the same as talking.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

Reb Akiva Eiger discusses some other practical applications for this principle.

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Minor Writing a Get

The Mishna (Daf Yomi: Gittin 22b) had stated: Everyone is qualified to write a get, even a mute, one who is insane, or a minor.

Tosfos asks: Since a minor in not a “bar kerisus,” he is incapable of divorcing his own wife, he therefore should be disqualified from writing a get for someone else!?

Tosfos answers: Since he will eventually grow into an adult, he is not regarded as someone who is incapable of divorcing his wife, and therefore, he is still eligible to write a get.

The Noda b’Yehudah (O”C §1) asks: Why is the halacha of writing a get different than the halacha of writing tefillin? A minor is excluded from writing tefillin, since he is not a “bar keshirah,” he is not obligated in the mitzvah of tefillin. Why don’t we say that since he will be obligated in the mitzvah when he becomes an adult, he should be eligible to write tefillin?

Reb Elchonon Wasserman answers: That which we say that someone who is not a “bar kerisus” cannot write a get is only if he is excluded inherently from the subject of divorce. A minor, however, cannot issue a divorce, not because he is excluded, but rather, it is because he is incapable of marrying. He, therefore, can still be regarded as a “bar kerisus,” and can therefore be eligible to write a get. However, with respect of tefillin, a minor is excluded from the obligation of tefillin, and therefore, he is not considered a “bar keshirah,” and is therefore not disqualified from writing tefillin.

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Agent to Free a Slave

The Mishna (Daf Yomi: Gittin 11b) had stated: If someone says: “Give this Get to my wife” or “Give this document freeing my slave to my slave,” if he wants to retract the document (before it gets to his wife/slave) he may. These are the words of Rabbi Meir. The Chachamim say: He can retract by the Get of his wife, but not by the document freeing his slave. This is because a person can have someone else acquire something beneficial for him when he is not present, but not something that is a liability for him when he is not present.

The Acharonim ask: One who frees his Canaanite slave has violated a Biblical commandment! If so, the agent who is being sent to deliver the emancipation document is an agent for an aveirah! There is a well established principle that one cannot be an agent for an aveirah!?

There are those who prove from here that although one is not permitted to serve as an agent to commit an aveirah, the agency, nevertheless, is not negated because of it. Tosfos in Bava Metzia (13b), however, states clearly regarding one who was sent to serve as an agent for an aveirah, the agency is negated and his actions are null and void.

The Noda BeYehudah answers that since the agent is acquiring the document for the slave, he is serving as an agent of the slave and not as an agent of the master. He is therefore not regarded as being an agent for an aveirah, because the aveirah is for the master to set him free; not for the slave to gain his freedom.

One can also answer that we are discussing a case where it was a mitzvah to free the slave (a tenth man was needed for a minyan), and therefore, there was no aveirah.

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Something that will become Permitted

Rabbi Shimon said Nedarim 58a): That Mishna is only referring to the halacha of bi’ur i.e. removing (the produce of Shemitah may be kept as long as that produce is still available in the fields for the animals; afterwards, it may no longer remain in the house).

The Ra”n explains: Since it was possible to eat it before that time, it is regarded as something that can become permitted.

The Sha’ar Hamelech and the Noda B’Yehudah ask: According to this logic, why is it only not nullified if it becomes intermingled with its type? The halacha should be that it should not become nullified even if it becomes mixed up in something that is not its type? For the Ra”n above (52a) explained at great length in the name of the Ri”f that something which is permitted presently to be consumed will not be nullified, even with a mixture of things that aren’t its type?

The Sha’ar Hamelech answers: The Ra”n only said that rule in respect of things that will be permitted forever, such as meat, which will always be permitted to be eaten with other meat or foods that are not from milk. However, here, the Shemitah produce will become forbidden forever, i.e. after the “time of removal.” It is therefore compared to something that will become permitted, where it will not become nullified only in a mixture of things that aren’t its type.

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INVERTING HERSELF AFTER RELATIONS WITH HER DERANGED HUSBAND - Yevamos 69 - Daf Yomi

Rabbah bar Rav Huna states: We are only concerned for pregnancy in cases of cohabitation during marriage; however, in cases that involve promiscuity, we are not concerned for pregnancy (because women who engage in illicit relations invert themselves after cohabitation in order to avoid becoming pregnant).

Tosfos writes: A Kohen’s daughter who is married to a deranged man is permitted to eat terumah. Although she assumes that her marriage is valid, she is concerned that she will not be able to tolerate him, and eventually will leave him. She therefore inverts herself after relations with her husband in order that she will not conceive and bear his children.

The Noda B’Yehudah (II Y”D:202) brings a question from Reb Zaruch Eidelwitz from Prague: The Tur (Y”D 331) rules that a Kohen’s daughter who is married to a deranged man is disqualified from eating terumah. How can that be if the kiddushin does not take effect even Rabbnically?

The Noda B’Yehudah’s son answers: The Tur disagrees with Tosfos, and maintains that a woman who is married to a deranged man is under the impression that her marriage is valid, and therefore she does not invert herself after relations. The Tur rules that she is disqualified from eating terumah because we are concerned that she might be pregnant.

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Dikduk and Chazal - Yevamos 35 - Daf Yomi

Why does the Mishna say that the yavam performs chalitzah with the yevamah; doesn’t the passuk say that the yevamah is the one that performs chalitzah by removing the yavam’s shoe?

The Nimukei Yosef writes (104b) that throughout Meseches Yevamos, the Gemora states that he is performing the chalitzah except for a case of a mute yavam.

The Noda B’Yehudah (I, E”H, 94) writes that as a child he would think that Chazal were not diligent in writing with correct grammar (because they wrote that he performed the chalitzah, when in truth, she is the one that performs the action), but afterwards he realized that their language is extremely precise.

The Gemora later (102b) states that the term chalitzah can mean the putting on of a shoe as well. This is what the Gemora means when it says that he performs the chalitzah. The yavam puts his shoe on in order to enable the yevamah to remove his shoe.

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FROM THEIR MOUTHS AND NOT FROM THEIR WRITING - Yevamos 31 - Daf Yomi

The Gemora states that testimony is valid only from the mouths of the witnesses, not on the basis of any documents. It is evident that writing is not the same as talking.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

Reb Akiva Eiger discusses some other practical applications for this principle.

(http://weeklyshtikle.blogspot.com/2007/05/weekly-shtikle-emor.html) The Weekly Shtikle writes the following: The topic is the discussion as to whether or not writing may qualify as a valid means of fulfilling the mitzvah of Sefiras HaOmer. That is, if one was to write, "Hayom Yom X La'Omer," would that be sufficient to fulfill one's obligation and would this action disallow one from repeating the count with a brachah?

The discussion of this halachic quandary follows an interesting family tree. This issue is first dealt with in Shaalos uTeshuvos of R' Akiva Eiger, siman 29. The teshuvah is actually written by R' Akiva Eiger's uncle, R' Wolf Eiger. Unable to attend his nephew's wedding, he made a simultaneous banquet of his own to celebrate the occasion. He wrote to his nephew about this halachic issue which was discussed at the banquet. He cites a number of related issues which he builds together to try to reach a conclusion. The gemara (Yevamos 31b, Gittin 71a) teaches that witnesses may only testify by means of their mouths and not by writing. The gemara (Shabbos 153b) states that mutes should not separate Terumah because they cannot say the brachah. It is assumed that writing the brachah would not have been sufficient. Also, there is a discussion amongst the commentaries with regards to the validity of a vow that is written and not recited. R' Wolf Eiger concludes that writing is not a sufficient means of fulfilling the mitzvah of Sefiras HaOmer. However, this sparks a debate between him and his nephew which stretches out to siman 32.

This issue is eventually discussed in Shaalos uTeshuvos Kesav Sofer (Yoreh Dei'ah siman 106) by R' Avraham Shmuel Binyomin Sofer, R' Akiva Eiger's grandson who was, in fact, named after R' Wolf Eiger. He covers a host of related topics and eventually discusses the exchange recorded in his grandfather's sefer. The debate, although it encompasses various pertinent issues, never produces any concrete proof directly concerning the act of counting. However, Ksav Sofer quotes his father, Chasam Sofer, in his footnotes to Shaalos uTeshuvos R' Akiva Eiger (his father- in-law) where he provides a more concrete proof. The gemara (Yoma 22b) teaches that one who counts the number of B'nei Yisroel transgresses a prohibition as it is written (Hoshea 2:1) "And the number of B'nei Yisroel shall be like the sand of the sea that shall not be measured nor counted." The gemara cites two examples (Shmuel I 11:8, 15:4) where Shaul HaMelech went out of his way to avoid this prohibition by using pieces of clay or rams in order to perform a census. Chasam Sofer suggests that Shaul could simply have counted the men by writing down the numbers and not saying them. Since Shaul went to far greater lengths, we are compelled to say that writing the number of men would still have qualified as counting them and he would hot have sufficiently dodged the prohibition. Thus, concludes Chasam Sofer, if one has explicit intention to fulfill the mitzvah, writing is a valid means of performing the mitzvah of Sefiras HaOmer. However, Kesav Sofer suggests that perhaps the brachah should not be recited in this case.

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Daf Yomi - Chagigah 10 - TAKING A VOW THROUGH WRITING

Shmuel states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present.

Accordingly, we can say that an oath taken through writing will be binding.

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Daf Yomi - Beitza 24 - Posek Changing his Mind

The Mishna states that there was an incident where a gentile brought a fish to Rabban Gamliel on Yom Tov and Rabban Gamliel ruled that the fish are permitted for use but Rabban Gamliel did not wish to accept the gift from the gentile. The Gemara discusses the reason why Rabban Gamliel permitted the fish for use.

Rav maintains that it was permitted to accept the fish and to handle the fish but the fish were not permitted for consumption. Levi disagrees and maintains that the fish were permitted for consumption.

Rav stated further that a person should not leave the Beis Medrash, even for a moment. Rav related that both he and Levi were in the Beis Medrash when Rebbi ruled on this matter. In the evening Rebbi ruled that it was permitted to eat the fish according to Rabban Gamliel. In the morning, however, Rebbi retracted his ruling and he ruled that one could handle the fish but they could not be eaten. Levi was only in the Beis Medrash in the evening but not in the morning and therefore he did not hear Rebbe's retraction.

Shearim Mitzuyanim B’Halacha cites a similar Gemora in Shabbos (136b) where Ravina quotes Rava retracting his ruling the next morning.

The Noda BiYehudah writes that if a posek rules on a halachic inquiry and his ruling is accepted, the ruling has the effect of two witnesses in court. If one were to claim that the posek retracted his decision, he would not be believed as it is akin to the word of one witness against two witnesses.

Based on his premise, one must wonder how Rav was believed to state that Rebbi retracted his decision in the morning.

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