Order of the Parshiyos

Letotafos (tefillin placed on the head) occurs three times in the Torah, twice without a “vav” and once without a “vav,” - four in all. This teaches us that four compartments are to be inserted in the (head) tefillin. This is the opinion of Rabbi Yishmael. Rabbi Akiva, however, maintains that there is no need for that explanation, for the word totafos itself implies four, since it is composed of the word tot which means two in Caspi, and fos which means two in Afriki.

In both the shel rosh (head tefillin) and shel yad (arm tefillin), there are the same four passages written in them; the only difference between them is that in the shel rosh each bayis (compartment) contains one passage, while in the shel yad all four passages are written in the same bayis on one piece of parchment. (Orach Chaim 32:2). Furthermore, these four passages must be written in order as it appears in the Torah which is Kadesh, V’hayah ki yi’vi’achah, She’ma, V’hayah im shamo’a, and if they aren’t, the tefillin are invalid. (ibid 32:1).

There is a well known disagreement between Rashi and Rabbeinu Tam as to what is the correct order of the passages: Rashi holds that it is Kadesh, V’hayah ki yi’vi’achah, She’ma, V’hayah im shamo’a, starting from left to right. Rabbeinu Tam maintains that V’hayah im shamo’a goes before She’ma. The Shulchan Aruch rules in accordance with Rashi (ibid. 34:1). The Mishnah Berurah points out that Rabbeinu Tam is not arguing on the order that it must be written, rather, only on the order that it needs to be placed in the compartments.

The Bach quotes the S’mag and Mordechai, who reported that a pair of tefillin were found in the grave of Yechezkel Hanavi, and the passages appeared in the order of Rashi. Some do not consider this as proof that the ancient tefillin were in fact made according to the opinion of Rashi, since it might have been buried precisely because it was out of order. The Bach rejects this answer, since they could have simply switched it back to the proper order, as we learned that it is only the placing out of order in the compartments that invalidates the tefillin.

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Ma'aser on Purchased Produce

by: Reb Avi Lebovitz

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There is a fundamental argument between Rabbeinu Tam and Rivam quoted by Tosfos regarding the exemption from ma’aser on produce that Reuven sold to Shimon.

Rabbeinu Tam holds that if Reuven processed the produce prior to selling and it became obligated in ma’aser and assumes a status of tevel, by selling it to Shimon, the tevel status is removed and it is exempt once again. But if Reuven never processed it, when Shimon does the processing, he will be Biblically obligated in ma’aser because it is considered his own produce.

Rivam says exactly the opposite. If Reuven processed the produce prior to selling it, since it has become obligated in ma’aser and assumes a status of tevel, this status cannot be removed. Therefore, when he sells it to Shimon, Shimon will have a Biblical obligation to separate ma’aser. But if Reuven sold it to Shimon prior to processing it and it was processed in the home of Shimon, then it is not subject to a ma’aser obligation.

When the produce was grown by an idolater (assuming his acquisition in Eretz Yisroel will not remove the ma’aser obligation), the Gemora says in Bechoros (11b) that if the idolater processed them and then sold them to a Jew, they are exempt from ma’aser, but if the Jew processed them, they are obligated.

Rabbeinu Tam holds that if the produce was processed by the original farmer, it makes no difference if he were a Jew or an idolater, the buyer would be exempt. But, if they weren’t processed by the original farmer, the buyer would be obligated.

The Rivam holds that when the original farmer was an idolater, the halachah is exactly the opposite from when the original farmer would be a Jew. An idolater farmer who processes and sells would be exempt since it was processed by the idolater and it will remain exempt even after it is sold. But if an idolater farmer didn’t process it, it is not considered his at all, so that when he sells it to the Jew and the Jew processes it, it is obligated.

The greatest difficulty with Rabbeinu Tam is that produce that is tevel can be sold and revert back to being exempt from ma’aser (and then if sold back to Reuven would revert back to being obligated in ma’aser)! The greatest difficulty in the Rivam is that produce of an idolater is not considered to be his unless he processed it, so that if sold to a Jew, it is as if the Jew grew it himself and is obligated in ma’aser.

Another hybrid approach (possible Reb Chaim’s explanation in a Rambam) is that it is not dependent on who processed it, but rather what the intent was when it was processed. If Reuven processed it for personal use and it becomes obligated, nothing can remove that status of tevel (like the Rivam). If Reuven did not process it; rather he sold it to Shimon who processed it, then it is also obligated (like Rabbeinu Tam). Only if Reueven processed it with the intent of selling it to Shimon, it will be exempt.

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Concealing his True Stature

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The Mordechai (Gittin 461) relates that Rabbeinu Tam once instructed a Kohen to pour him some water. This caused one of his students to inquire as to how he could allow a Kohen to serve him, being that the Yerushalmi states that whoever uses a Kohen for his own needs is in violation of the prohibition of me’ilah (since the Kohen is sacred). Rabbeinu Tam's response was that the Kohen who served him in 12th century France was without the clothing of the Kohen and, therefore, not a Kohen (based upon the Gemora Sanhedrin 83b). The student persisted that if so, we shouldn’t give a Kohen the first aliyah. Rabbeinu Tam remained quiet. Rabbeinu Peter then suggested that a Kohen can voluntarily forfeit the respect due to him as a Kohen and, therefore, there was no problem with Rabbeinu Tam's use of him.

The Ta”z asks that the Kohen is not permitted to forfeit his kedushah and marry a divorcee!? What is the difference between the two?

He answers that it is only permitted for the Kohen to forfeit the respect due to him with respect to something that he will be deriving benefit from – e.g. to be an attendant for Rabbeinu Tam. However, something that the Torah explicitly prohibits, such as – marrying a divorcee, there is no option to forfeit that kedushah.

The Ta”z adds that the reason Rabbeinu Tam was quiet was not because he did not know what to answer; but rather, it was because he did not want to be considered a Torah scholar, for that would be the only reason that it would have been permitted. He cites our Gemora and Tosfos as a proof to this. The Gemora stated: Rav Kahana, Rav Pappa and Rav Ashi did not eat the produce from a pledged field even with a deduction. Ravina, however, did. Tosfos asks: How could Ravina eat the produce from a pledged field even with a deduction? Didn’t the Gemora say above that a Rabbinical scholar would not take produce in such an arrangement?

Tosfos answers that Ravina, due to his great humility, did not want to be regarded as a Rabbinical scholar. Ravina did not want people to be aware of his spiritual importance. The prohibition, which applied to other Torah scholars, did not apply to Ravina, for since he was not known as a Torah scholar, his conduct would not necessarily serve as an example to others.

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Takkanas Nigzal

The Gemora (daf yomi - Bava Kamma 62) lists a number of diverse cases where the Sages applied the rule for the robbery victim, without clarifying in exactly what circumstances the rule was applied, nor why. There is discussion in the Rishonim about what the parameters for these cases are. Rabbeinu Tam (Tosfos 62a asu) states that the debate in the case of an informer is only when the informer claims with certainty that he did not cause as large a loss as the victim claims. However, when the informer is uncertain, then there’s no question that the victim can use the rule of the robbery victim, and collect with an oath. The Ri, on the other hand, states that the Gemora is currently following the discussion of applying the robbery victim rule to fire damages of embedded items. In that case, the damager obviously has no knowledge how much he damaged, so similarly the discussion by an informer must be also in the case of the informer not knowing how much damage he caused.

According to the Ri, the application of takanas nigzal is only due to the fact that the damager doesn’t know how much the damage is. If the damager claims with certainty a lesser amount, the usual procedure must be followed, and the victim must bring proofs. The Gemora is only using the case of nigzal as a borrowed term, to apply in a case where the damager cannot counter claim with certainty. However, Rabbeinu Tam applies the takanas nigzal even to cases where the damager claims a lesser amount with certainty. The application must be a more direct analogy to the robbery case. In the robbery case, the robber is not able to swear, since we punish his status as a robber by invalidating his oath. Therefore, the Sages placed that oath on the victim, to allow him to collect. Similarly, Rabbeinu Tam holds that one who lights a fire – a gross negligence, and a very direct form of damage – and an informer – a very severe and dangerous form of damage – are punished for their crime by allowing the victim to collect with an oath. Rabbeinu Tam would therefore equally apply the takanas nigzal to any fire damages, even in the simple non tamun case that the Chachamim discuss. [See the Rosh paragraph 16, who mentions both reasons by the case of fire.]

The Pnei Yehoshua points out that the Gemora flow seems to indicate Rabbeinu Tam’s approach is correct. The Gemora concludes the discussion of takanas nigzal with a seeming non sequitur – the distinction between a chamsan and gazlan. The Pnei Yehoshua explains that the Gemora was discussing different types of criminals, and the sanctions put on them by takanas nigzal, and therefore concluded with a statement about two types of criminals who cause another person monetary loss.

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Wearing the Tzitz - Kiddushin 66

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The braisa states: King Yannai once went to Kuchlis, which is located in the desert, and captured sixty of its villages. When he came back, he was very happy, and called together all of the Torah scholars. He said: Our fathers ate salty vegetables when they were building the Beis Hamikdash, we should also eat these now to remember our fathers. He then had salty vegetables placed on tables of gold, and the people (at the gathering) ate. There was a scorning, bad hearted, godless person named Elozar ben Po’irah present. He said to Yannai: King Yannai, the heart of the Perushim (Torah faithful) is set against you! King Yannai replied: What should I do about this (to see if you are correct)? Elozar replied: Put the tzitz (an adornment only allowed to be worn by the “Kohen Gadol” -- “High Priest”) between you eyes. He did this. There was an elder named Yehudah ben Gedidyah present. He said to Yannai: King Yannai, it is enough that you have the crown of the throne! Leave the crown of Kehunah for the sons of Aharon! This is because they said regarding him that his mother had been captured by idolaters in Modi’in, but they searched to see if it was true and it (proof) was not found. [According to Rashi, his father was indeed a Kohen, but according to this rumor he should not have married his wife, as she was unfit to marry a Kohen. If the rumor was true (see below for the exact case), this would mean Yannai was a chalal, and was not fit to serve as a Kohen.]

Yannai angrily removed the scholars from the meal. Elozar ben Po’irah again spoke to King Yannai. He said: King Yannai, it is understandable that a regular Jew should swallow insults. However, you are a king and the Kohen Gadol, is it fitting that you should do the same? King Yannai asked: What should I do? Elozar replied: If you listen to my advice, you will kill them all. King Yannai asked: What will become of the Torah? Elozar replied: The Torah will be wrapped and placed in a corner, and whoever wants will go and study it.

Rav Nachman bar Yitzchak says: Immediately, a wind of heretical behavior entered Yannai’s mind. This is evident from the fact that he did not reply, “This maybe true about the written Torah, but what about the Oral Torah (which was not yet written down at all)?” Immediately, the spark of evil was started by Elozar ben Po’irah, and Yannai killed all the scholars. The world was lacking Torah knowledge until Shimon ben Shetach (Yannai’s wife’s brother; she hid him) came and returned the Torah back to its original state.

Rashi asks: How can he put the tzitz on at this time when he is not engaged in performing the Temple service?

He answers: The Kohanim were permitted to derive benefit from the Holy vestments, for the Torah was not given to the ministering angels, and they were not expected to remove these garments at the moment that they concluded the service.

Tosfos asks: On the contrary! They were obligated to remove them as soon as they had a chance!

Furthermore, asks the Rashba, the permission was only inside of the Beis HaMikdash, not outside!?

The Beis Halevi explains Rashi: Since they were not expected to remove these garments at the moment that they concluded the service, this proves that there was no prohibition whatsoever against deriving benefit from the Holy vestments, and they were permitted l’chatchilah to wear these garments even when they were not performing the Temple service, and even when they were not inside the Beis HaMikdash.

Rabbeinu Tam answers based on a Scriptural verse that the tzitz was different than the other garments, and they were allowed to wear it even when they were not performing the Temple service.

The Ritva writes that Yannai was not correct by wearing the tzitz at this time.

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Price Fraud by Land

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Rav Nachman said: If brothers divide an inheritance, they are regarded as purchasers (for they are exchanging their true portions for those that they actually receive). If one brother received more than the other, but it was less than a sixth more than his brother’s share, the deal remains valid. If it was more than a sixth, the deal is void. If it was precisely a sixth, the deal is valid, but he is required to return the extra.

Rava rules: That which we said that if it was precisely a sixth, the deal is valid, but he is required to return the extra, that is only if they were dividing movable property. However, if they were dividing land, the rules for “price cheating” do not apply (and the extra would not need to be returned).

And by land, the extra does not need to be returned only if they divided it according to value. However, if they divided it according to measurement, the extra must be returned. This is in accordance with what Rabbah said, for he said: Anything which is sold according to measure, weight or number (and the amount specified was not the amount delivered), it must be returned even if it (the discrepancy) was less than the usual amount for “price cheating.”

The Ri”f rules (and this seems to be Rash”i’s opinion as well) that there is no “price fraud” by land is only if the discrepancy was exactly a sixth; however, if the discrepancy was for more than a sixth, the deal is void.

Rabbeinu Tam holds that there are no rules of “price fraud” by land as long as the discrepancy is not by more than half of its value; however, if the discrepancy was for more than half of the land’s value, the deal is void.

The Baal Hameor writes that if the discrepancy is for exactly half of its value, there is no rule of “price fraud”; however, if the discrepancy was for more than half of the land’s value, the deal is void.

The Rambam, however, rules that there are no halachos of “price fraud” by land at all, and the transaction is never voided. This is because there is no limit to the price of land.

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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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An Idolatrous Name

Rav Yehudah said in the name of Shmuel (Daf Yomi: Gittin 34b): The Jews from abroad sent to Rabban Gamliel the following inquiry: If a man comes here from Eretz Yisroel whose true name is Yosef, but who is known here as Yochanan, or whose name is Yochanan, but who is known here as Yosef, how can he divorce his wife? Rabban Gamliel thereupon stood up and decreed that they should write in the get, “This man So-and-so or by whatever names he is known,” “This woman So-and-so or by whatever names she is known,” in order to benefit the public.

They asked Rabbeinu Tam regarding a Jew who worships idols and he divorced his wife with a get which had only his Jewish name written on it, and not his idolatrous name. What is the status of such a get?

He answered: Heaven forbid to even mention an idolatrous name on a get which is written according to the law of Moshe and all of Israel!

The Ra”dach in his response explains that his idolatrous name is not regarded as his name at all, and if that would be the only name written on the get, it would be as if the get would be written without the name of the divorcing husband.

However, Reb Yosef Engel notes that from the language of Rabbeinu Tam, it would seem that there is a different explanation. It is on account of the sanctity of the get that his idolatrous name cannot be written.

And the Rad”vaz in his response writes like that as well. He says that any holy scroll, such as a Sefer Torah, Tefillin, or Mezuzah, where there lies an obligation that it should be written lishmah, and also a get has sanctity, for it is also has a requirement to be written lishmah.

He concludes that the matzah which is being baked to be eaten on Pesach night also possesses sanctity, for it is required to be baked lishmah.

It is possible that this could explain the custom of many righteous people to kiss the matzah before they eat it on the night of the seder.

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