Benefit from Receiving

By: Reb Avi Lebowitz

The Gemora in Kiddushin (6a) says that if a woman would give a gift to someone who is an important person and doesn’t accepts presents from just anybody, she would be receiving enough pleasure from the fact that he receives her gift so that he can betroth her with that benefit that she receives.

The Taz (y.d. 160:8) explains that the reason that he must be an important person is because if he is just a regular person, then the benefit she receives, doesn’t have any cash value to it and therefore cannot create a kiddushin.

The Taz continues to apply this concept to the prohibition against lending with interest as well. If a lender tells a borrower, “I will lend you the money you need on condition that you receive this gift from me” - it depends. If the borrower is an important person, then the lender would be receiving real benefit from the borrower willing to receive his gift, which would create a ribbis (lending with interest) problem. But if the borrower is not an important person, there wouldn’t be any ribbis problem. The Taz clearly understands that if the receiver of the gift is not an important person, we consider the value of the pleasure that the giver has to be worth zero, and therefore it is not a ribbis problem.

However, R’ Akiva Eiger (y.d. 160 on Taz) cites a Ran in Kiddushin who asks based on Levi in our Gemora who holds that chalifin is done with the vessel of the seller, because the benefit that the seller receives by the buyer willing to accept his gift, provides enough benefit to the seller with which to sell the item. Clearly, we see that the seller receives benefit by the buyer receiving his gift even if the buyer is not an important person. This seems to contradict the Gemora in Kiddushin!?

The Ran answers that even if the receiver of the gift isn’t an important person, the giver has pleasure that the receiver was willing to accept, but the pleasure isn’t valued at a perutah. Therefore, in the context of kiddushin where her pleasure must equal a perutah, it only works when he is an important person. But, by chalifin, where the benefit received by the seller need not be worth a perutah, even if the buyer is not an important person, it will work.

R’ Akiva Eiger explains that Rav doesn’t disagree with Levi about this. Therefore, in the context of ribbis, where even a slight benefit that the lender receives from the borrower is a prohibition (although not a Biblical one), even if the borrower isn’t an important person, there would be a problem of ribbis. Based on this, the lender cannot say to the borrower, “I will lend you money on the condition that you receive this gift from me,” even if the borrower isn’t an important person, because the lender will be receiving some minor benefit which is forbidden.

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Obeying a Jewish King in Eretz Yisroel

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It is evident from the Gemora that the law of the kingdom has the full force of halachah behind it. The Ritva writes that we do not find anyone that disagrees with this principle.

The Rashbam explains the rationale for this halachah: All citizens of a country voluntarily accept upon themselves to obey the king’s decrees and laws. All of their laws are therefore binding. Accordingly, one who possesses his fellow’s property based upon that particular country’s law, does not violate a prohibition of stealing at all.

The Rashba explains it differently: Since the entire land belongs to the king, he is entitled to chase anyone away from his land if he wishes, and he has the right to tax everyone for the privilege of residing in his land.

A difference between these two opinions may be if this halachah would apply in Eretz Yisroel with a Jewish king. According to the Rashba, it might not apply in Eretz Yisroel, for every Jew has an inalienable right to live there, and no king would have the jurisdiction to banish anyone from the Land.

The Ra”n in Nedarim 28a rules that this principle applies only in the lands of the exile. The reason for this, he explains, is that in these countries, the land is the property of the kingdom, and one is therefore obligated to abide by the laws and ordinances of the country in which he resides. But, in Eretz Yisroel, which belongs to the entire Jewish nation, there is no obligation to comply with the laws of a Jewish king. The Rambam and Shulchan Aruch both rule that this principle does apply to a Jewish king in Eretz Yisroel.

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Mobile Courtyard

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The Gemora (Bava Kamma 12) states that a moving courtyard cannot effect an acquisition for its owner. The Rishonim disagree as to the reason for this. Rashi and Tosfos maintain that since the halacha that a courtyard can effect an acquisition for its owner is derived from the halacha of acquiring through one’s hand, a moving courtyard, which does not resemble to a hand (which is stationary), cannot effect an acquisition for its owner.

The Ritva and the Ran suggest a different reason for this. They say that since the courtyard can be a great distance away from the owner, it is not considered protected by the owner, and therefore it is disqualified from effecting an acquisition for the owner.

The Divrei Mishpat notes that the following case would be a difference between them: If a lost object would fall on his animal which is in his courtyard. If a mobile courtyard is excluded because it does not resemble a person’s physical hand, he will not acquire this lost object, for the animal is a moveable object. If, however, a mobile courtyard is disqualified from effecting an acquisition because it is not guarded from intrusion by the owner, here, he will acquire the lost object because the object is protected.

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Concern for an Unfulfilled Condition

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The braisa (Kiddushin 60) had stated: If someone says, “This is your get on condition that you give me two hundred zuz,” even if the get is torn or lost, she is divorced. She should not marry someone else until she gives him the money.

Rashi explains that we are concerned that she will remarry, and if she doesn’t give the money, it will emerge that she was never divorced, and her second marriage would be an adulterous one!

The Ran writes that we can derive from this halachah to any case where a man divorces his wife with a condition; she may not remarry before the condition is met, for otherwise, her second marriage would be an adulterous one!

The Ran challenges this principle from a Gemora in Gittin (83a): Rabbi Akiva said: What happens if after this Get (if one divorces his wife and stipulates that she can marry anyone except for one certain man), she marries a man and has children from him, and then subsequently he divorces her or dies? If she now goes and marries the man that her first husband forbade her to marry, this would make her first Get invalid and the children from her second marriage are rendered mamzeirim! The Gemora asks: According to this question all conditions made in gittin should not be valid, as she could always marry someone first, have children, and then not fulfill the condition! This is the question on Rabbi Akiva’s question.

It would seem from this Gemora that we are not concerned by an ordinary condition that it will not end up being fulfilled!?

The Ran differentiates between conditions that require an action, and those that don’t. In our case, the woman must give the two hundred zuz to the man. Here we are concerned that due to an accident, she will not give him the money. However, in the case in Gittin, we are not concerned that she will willingly violate the condition.

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Kiddushin Daf 12

MONEY; NOT DIRT

Shmuel Daf yomi Kiddushin 12a said: If someone betroths a woman with a date, even if a kur of dates is only worth a dinar, we say that she is betrothed, as a single date might be worth a perutah in (the country of) Media (where dates are not so common).

The Ra”n explains that this is because she can say that to her, the date is worth a perutah.

This explanation is challenged by the Acharonim, for if so, the kiddushin should be valid even if it is not worth a perutah in Media (similar to the incident involving Rav Kahana and the kerchief cited above)?

The Pardes Yosef answers: In order for someone to say, “It is worth a perutah to me,” it has to be regarded as “money,” and not mere earth. It is considered “money” if it valued as a perutah somewhere in the world. If the date is worth a perutah in Media, the woman can say here, “It is worth a perutah to me.”

PERUTAH

Today, the custom, based upon the Ram”a is as follows: Under the chupah, prior to the man giving the ring to the woman, the Rabbi asks the witnesses in the presence of the bride whether, in their opinion, the ring is worth a perutah, the minimum amount necessary for the marriage to be effective. This is done in order that the woman should know that her husband is only marrying her with one perutah of the value of the ring, and the remaining value is a present. It follows, therefore, that if the ring were to be found fake, it should not affect the marriage. As long as the ring was worth a perutah, she cannot claim that she consented to the marriage under an erroneous assumption. Although she thought that her present (the ring) was worth more than it actually did, it cannot affect the marriage.

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Chalifin for a MInor - Gittin 65

Rava said: There are three categories of a minor: If he would be given a rock, he would discard it, but if given a walnut, he would accept it, he can make an acquisition on things, but he may not acquire for others.

Tosfos asks that it seems from a Gemora in Bava Basra that a minor does not have the ability to acquire anything!?

Tosfos answers: The Gemora there could be referring to a minor who has not yet reached this stage of understanding.

Alternatively, they answer that the Gemora there is referring only to a kinyan chalifin (acquiring something through an exchange with a kerchief or other object), where a minor has a more difficult time grasping the mechanics of the kinyan.

The Ra”n explains that the Rabbis instituted for a minor only those kinyanim where the object is raised or pulled by the minor; however, other types of kinyanim, where the concepts are difficult to grasp, are not effective for the minor.

The Rashb”a adds that since we rule that the object being used for the chalifin must be owned by the one making the acquisition, it emerges that the minor must convey the object to the seller. He does not have enough knowledge to accomplish that and therefore the kinyan is not effective.

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An Ignorant Person's Recognition

The Mishna (Daf Yomi: Gittin 27a) had stated: If an agent (who was bringing a get) lost the get and found it immediately, it is still valid. However, if he found it after some time, it cannot be used (for we are concerned that it fell from someone else and it is not the get which he lost). If he found the get in a chafisah or in a deluskema (types of containers), or if he recognizes the get, it is valid.

Rashi explains that if the agent himself found the get (not in a container) and he recognizes it, the get is valid.

Other Rishonim understand the Mishna to mean that the get is valid if he recognizes the container.

The Rashba writes that the get will be valid if the agent found it and claims that he recognizes it. This is true even if the agent is an ignorant person. That which the Gemora says below that an ignorant person cannot be trusted that he recognizes the get is only true when someone else found it and the agent is trying to claim it from him. There, we suspect that he is lying. However, if he himself found the get, he is trusted that he recognizes it, for he has a migu (believe me what I am saying, for if I would want to lie, I could have said a better lie); he could have said that he never lost it in the first place. (The Ritva seems to say that the ignorant person is believed even without the migu.)

The Ramban writes that it is only with respect to a lost article that we do not trust an ignorant person when he claims that he recognizes it. However, with regards to a get, which is a prohibitory matter, he is trusted. (The Magid Mishnah explains that this is because one witness is believed with respect to prohibitory matters.)

There are two glaring questions on the Ramban. Firstly, the Gemora below states explicitly that to return it to someone who claims that he recognizes it by sight, it is only to a Talmudic scholar who would be trusted, but not any ordinary person!? Secondly, a get should be regarded as a davar she’b’ervah, a matter with respect to relations, and two witnesses are required for testimony involving such matters!?

The Toras Gittin answers the first question as follows: When the Gemora states that an ordinary person will not be trusted that he recognizes the get, that is only with respect to the monetary issues of the get; however, with respect to the prohibitions stemming from the get, he will be trusted.

The Maharam Schick answers the second question: The halacha is if a father said, “I accepted a kiddushin for my daughter, but I do not know from whom,” and a fellow comes to us and says that it was him, he is believed and she is married to him. The Ran explains that although ordinarily, a davar she’b’ervah requires two witnesses, here it doesn’t, for his testimony is not in contrast with any preexisting status quo; it is merely a clarification as to whom the father accepted the kiddushin from. One person is sufficient for this. So too, here, the one witness is not testifying on the divorce; rather, he is clarifying for us as to who this get belongs to.

The Oneg Yom Tov answers this question by saying that the concern for two Yosef ben Shimon’s in the same city is only a Rabbinical one, and therefore, although it is a davar she’b’ervah, only one witness is required.

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Mobile Courtyard

The Gemora (Daf Yomi: Gittin 21a) states that a moving courtyard cannot effect an acquisition for its owner. The Rishonim disagree as to the reason for this. Rashi and Tosfos maintain that since the halacha that a courtyard can effect an acquisition for its owner is derived from the halacha of acquiring through one’s hand, a moving courtyard, which does not resemble to a hand (which is stationary), cannot effect an acquisition for its owner.

The Ritva and the Ran suggest a different reason for this. They say that since the courtyard can be a great distance away from the owner, it is not considered protected by the owner, and therefore it is disqualified from effecting an acquisition for the owner.

The Divrei Mishpat notes that the following case would be a difference between them: If a lost object would fall on his animal which is in his courtyard. If a mobile courtyard is excluded because it does not resemble a person’s physical hand, he will not acquire this lost object, for the animal is a moveable object. If, however, a mobile courtyard is disqualified from effecting an acquisition because it is not guarded from intrusion by the owner, here, he will acquire the lost object because the object is protected.

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Kal Vachomer

The Gemora (Daf Yomi: Sotah 29a) states that something which may be derived through a kal vachomer (literally translated as light and heavy, or lenient and stringent; an a fortiori argument; it is one of the thirteen principles of biblical hermeneutics; it employs the following reasoning: if a specific stringency applies in a usually lenient case, it must certainly apply in a more serious case), the Torah may anyway take the trouble to write it explicitly.

The Bnei Yissoschar explains the reasoning for this: A kal vachomer is based upon logic. One might say that the reason this halacha (derived through a kal vachomer) is correct is because it is understandable to me; it makes sense. The Torah therefore goes out of its way to write it explicitly in order to teach us that the halacha is correct because the Torah said so; regardless of whether it is understood or not.

The Ra”n in Nedarim (3a) notes that this concept is applicable by a hekesh (when the halachos from one topic are derived from another one) as well. The Gemora in Bava Metzia (61a) states that it also applies to a gezeirah shavah (one of the thirteen principles of Biblical hermeneutics; it links two similar words from dissimilar verses in the Torah).

According to the explanation of the Bnei Yissoschar, we could say that the concept should only apply to a kal vachomer, for that is based upon logic. The Torah would not find it necessary to state explicitly a halacha which is derived through a hekesh or gezeirah shavah, for they are not based upon logic at all, and it would be superfluous to write it.

The Yad Malachei writes that if the Torah does explicitly write a halacha which was derived through one of the thirteen principles of Biblical hermeneutics, we must treat it more stringently than an ordinary halacha. This is comparable to a Rabbinical prohibition, which has a slight support from something written in the Torah. Tosfos in Eruvin (31b) rules that such a prohibition is stricter than an ordinary one, which does not have any Scriptural support.

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Within a Period of an Utterance

The Gemora (Nedarim 87a) issues a halachic ruling: The halacha is that a statement which follows another statement within the period of an utterance is regarded as if it were made together with the first one except in the case of blasphemy, idolatry, betrothal and divorce. (If one commits blasphemy or practises idolatry, and immediately, within the period of utterance, retracts, his retraction is unavailing, and he will still incur the death penalty. If a man betroths a woman or divorces her, and immediately thereafter changes his mind, such withdrawal is invalid.)

The Ra”n comments that he doesn’t know why these cases are different and from where did the Rabbis derive this. It would seem, he says, that in regards to other things that are not as serious, when a person does them, he doesn’t do them with absolute intent. Rather, his intention is that he will be able to retract them within the time it takes for an utterance. But these, since they are so serious, a person will not proceed unless he has made up his mind completely, and for this reason, retraction, even within the period of time it takes for an utterance, is not effective.

The Ramban in Meseches Bava Basra quotes Rabbeinu Tam who says that the halacha that within the time it takes for an utterance is regarded as a single utterance is a decree that the Rabbis made because of a student who is purchasing something and his teacher comes, so that he will be able to greet him. They issued this ruling for all things except for these.

The Ra”n asks: How could they make a decree in respect to nedarim which will permanently uproot something from the Torah in a manner that involves actively doing something?

The Imrei Binah answers according to the Radvaz, who says that we are more lenient with respect to nedarim because they can be annulled by a sage. Therefore, the Torah gave the power to the Chachamim to permit a Biblical prohibition, even when it involves actively uprooting it.

Reb Shimon Shkop asks on the Ra”n: If the logic that enables one to retract within the period of an utterance is because he lacks absolute intent, how can this apply to the halacha of rending one’s garments over a death? There is no intention required!

They explain as follows: The principle of “within the time required for an utterance” accomplishes that any act performed can be viewed as continuing for a further amount of time (“the period of an utterance”). Therefore, when he rends his garments and then, within the time required for an utterance, discovers who died, it may be regarded as if he tore his clothes at that time.

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A Quiet Confirmation

Rava inquires (Nedarim 69a): Is there such a thing as an annulment for a confirmation, or not?

The Ra”n explains: If the father or the husband confirmed the neder and asked on that same day that the confirmation should be annulled, can it be annulled (similar to a neder)? It is obvious that it cannot be annulled on the following day, for it has no less effect than remaining quiet.

It is evident from the Ra”n here and he says so explicitly in Kesuvos that there is certainly no annulment if he had remained quiet.

The Reshash asks: What is the distinction? If he can annul a spoken-out confirmation, why can’t he annul a confirmation that came about because he remained quiet (which is regarded automatically as a confirmation)?

The Steipler Gaon answers: An annulment is only possible on an action performed by a person; however, remaining quiet, although that is deemed a confirmation, is not an action that can be annulled.

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Delaying by a Neder

The Mishna (Nedarim 63a) had stated: If one made a neder against tasting wine for the year, and the year was proclaimed to be a leap year, he is forbidden for the year and its extension.

The Ra”n explains: The Mishna is teaching us that even if one made the neder from the beginning of the year, since he said “this year,” we do not say that he meant “one year,” but rather, he is prohibited for an extra month, which is thirteen months. However, if he said “one year” without any specification, the extra month is not included, even though the year was a leap year. For behold, if he did not abide by his prohibition this year, he makes it up the next year, which is a regular year. And although, it is forbidden for him to do that, because there is a prohibition against delaying, since if he would delay, he could make it up in another year, his neder is not connected to this year, which is a leap year. Therefore, even if he fulfills it this year, the extra month is not included.

The Rashba holds that even if he says, “one year from today,” the extra month is not included.

It is evident from the Ra”n that he holds of the following novelty: One can violate the transgression against delaying, even by a prohibatory neder.

The Rambam and Ramban, both maintain that this prohibition is only applicable by a neder for hekdesh, when one is obligating himself to do something.

The Machaneh Efraim adds that this transgression can apply by all nedarim to fulfill a mitzvah.

Reb Shimon Shkop states that the Ra”n’s words are perplexing. The prohibition against delaying is applicable when the person has an obligation to do soemthing. A neder is a prohibition on an object. If the object is forbidden, it is forbidden, but if it is not, how can there be a prohibition against delaying?

Reb Dovod Pervarsky explains: A neder also begins with an obligation resting on the person. He is obligated to fulfill his neder. If the forbidden object is in existence, the neder takes effect upon that object. However, if it is not in existence at that time, the person has a responsibility to render it forbidden when it comes into this world. If he fails to do so immediately, he is violating the transgression against delaying.

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Something that can become Permitted - Davar she'yeish lo Matirin

(Nedarim 52a) If one makes a neder prohibiting himself from wine, he is permitted in cooked food which has in it the taste of wine. However, if he said, “Konam this wine that I will not taste,” and it fell into a cooked dish, if it contains enough to impart flavor to the entire mixture, it is forbidden.

This would imply that if there is not enough to give flavor, it would be permitted. The Ra”n quotes his teachers who ask the following: Something which is forbidden on account of a neder is “something that can become permitted” (davar she’yeish lo matirin), and we have established that anything that can become permitted is not nullified even in a thousand!?

They answer that when we say that it is not nullified even in a thousand, that refers to something that has been mixed with its own kind. But here, when it says, “and it became mixed,” it is referring to something else that is not the same kind, like the case of eggs that were cooked with it. Anything that is mixed with something else that is not its kind is permitted, provided that it does not give flavor, even if it is “something that can become permitted.” The Ra”n cites proof to this from a Mishna in Chalah and a Yerushalmi in our perek.

They, therefore, objected to the statement of the Ri”f in Meseches Chulin concerning bread that was baked in an oven with roasted meat. The Gemora states that it is forbidden to eat it with a dairy sauce even though it has been established that we are not halachically concerned with vapors. The reason it is forbidden is because the bread is “something that can be permitted,” since one may eat it together with meat. For that reason, it is not nullified, even in a thousand. It is evident from the Ri”f that he maintains that “something that can be permitted” is not nullified even in something that is not its kind.

The Ra”n, however, agrees to the Ri”f. When the Mishna here says that “something can become permitted” becomes nullified in something that is not its own kind, that is referring to something that is forbidden now, but will become permitted in the future, like nedarim. For the Ra”n has the following question: Since according to the Chachamim, all forbidden things become nullified in their own kind just as in a different kind, why did the Chachamim make a distinction in the case of “something that can become permitted,” between its own kind and a different kind?

The reason is as follows: The Chachamim and Rabbi Yehudah disagree whether or not something can be nullified in its own kind. Rabbi Yehudah maintains that a forbidden item is not nullified in its own kind, because anything that is similar to another thing does not weaken and nullify it; rather, it preserves it and strengthens it.

The Chachamim disagree and hold that a forbidden item and something which is permitted are not similar to each other, even if they are the same kind. This is because one is forbidden and one is permitted. For it is not fitting to follow the similarity of their substance, but rather the difference in their being forbidden and permitted.

It is for this reason that the Chachamim learned concerning “something that can be permitted” for the sake of being strict towards the opinion of Rabbi Yehudah. For since the forbidden item is not completely different from the permitted one, because the forbidden one will eventually become permitted, we say that it is not nullified in its own kind. It will only become nullified when mixed with a different kind, for the difference that exists between one kind and another will make up for the equality that is added here because it is “something that can be permitted.” It is the difference between kinds that is the cause of nullification, and equality interferes with nullification.

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Ran Elucidated - Daf 16

Distinction between a vow and an oath - The Gemora cites the Scriptural source for this: How do we know that one cannot swear to transgress a mitzvah? It is because it is written [Bamidbar 30:3]: If a man makes a vow to Hashem or makes an oath to prohibit himself, he shall not desecrate his word; according to whatever came out of his mouth, he shall do. We see from here that only “his word” (a discretionary matter) he should not desecrate. However, he may desecrate it when it involves the wishes of Heaven (where his oath contradicts a mitzvah).

The Gemora asks: Why is a vow any different? If it is because it says makes a vow to Hashem, which implies that he should not desecrate his word even when his vow involves the wishes of Heaven, why, by an oath, it is also written makes an oath to Hashem (since the words “to Hashem” is written between a vow and an oath)?

Abaye answers: In the case of a vow, one says, “The pleasure of the sukkah should be forbidden upon me.” (Since the vow is upon the object, not the person, it is effective.) However, in the case of an oath, one says, “I swear that I will not derive any pleasure from the sukkah.” (Since the oath is upon the person and the mitzvah is upon the person, they are contradicting each other and the oath cannot take effect.)

The Ran explains: It is reasonable that the word “to Hashem” should be referring to a vow, but not an oath. It is logical to assume that a neder in this manner will take effect. This is because he is not vowing directly against the Torah’s commandment. The neder takes effect and he is prohibited from deriving benefit from the sukkah because we cannot force a person to eat something that is forbidden to him. However, by an oath, he is saying that he will not sit in the sukkah. This is a direct contradiction to the Torah’s commandment and he doesn’t have the power to free himself from the Torah’s commandment to sit in a sukkah.

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Master of All

The Ran (Nedarim 2a) maintains if one states that he will not do something and includes the Name of Hashem, that itself is regarded as an oath. He proves this from a Gemora below (22b) which says that if one says, “By the Master of all, I will not eat it,” he is prohibited from eating it, although he did not say that he was invoking an oath.

It is evident from this Ran that the words “Master of all” is regarded as saying the Name of Hashem. If so, Reb Shlomo Zalman Auerbach asks: How would one be permitted to mention this expression (Adon Olam) in his daily speech; it should be regarded as pronouncing the Name of Hashem in vain?

The Chasam Sofer writes that this is indeed the halacha. Just as saying “The Compassionate One” in Hebrew is considered an oath, so too, if he says “Rachmana” in Aramaic, it is regarded as an oath. And just as these expressions are included in the prohibition of swearing with the Name of Hashem in vain, so too, if one uses this expression in vain, he has violated this prohibition, for both of these transgression (swearing falsely and saying Hashem’s Name in vain) are derived from the same verse. Reb Shlomo Zalman is deeply troubled by this ruling, for if so, it would be forbidden to say “Ribbono shel Olam,” or “Adon Olam,” and this is not found in the poskim.

The Netziv cites a different ruling of the Chasam Sofer: If one finds himself in a situation where he is uncertain if he should recite a certain blessing or not, he may say the following: Brich Rachmana Mara D’alma (Blessed is the Compassionate One, Master of all). This would seemingly be a contradiction to the other ruling of the Chasam Sofer. If “Master of all” is considered the Name of Hashem in regards to an oath and in respect to uttering the Name of Hashem in vain, what remedy is there by reciting this other version of the blessing; he is anyway saying the Name of Hashem? Reb Akiva Eiger rules that one is prohibited from using this other version because of this concern.

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