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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Reckoning with the Charity Collectors

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The Gemora cites a braisa: The charity collectors are not required to give an account of the monies entrusted to them for charity. And the treasurers of the Temple are not required to reckon the funds given to them for the Temple purposes. And although there is no actual proof of this in the Scriptures, but there is a hint of it in the following verse: And they would not reckon with the men into whose hand they delivered the money, to give to those that did the work, for they dealt faithfully.

Rabbi Elozar said: Even if a man has in his house a treasurer on whom he can rely, he should tie up and count out all money that he hands to him, as it is written: They bound it in in bags and counted the money.

Rashi writes that although he has no intention of demanding an accounting afterwards, he still should tie up and count out all money that he hands to him.

What is the purpose of such a counting?

The Meiri explains that if he will not count it in the beginning, he will certainly suspect the treasurer that he accepted more money then he actually spent. Now that it is counted, at least they are both aware as to the amount of money which was given over to him. One should always make an effort not to suspect a person of committing a wrongdoing.

The Maharsha writes that the money is counted in order that the mazikin (spiritual damagers) should not have any control over the money, for money that is tied, sealed, or counted they cannot have any effect over.

The Ein Eliyahu answers that it is counted in order that the treasurers themselves can make a calculation at the end, if they so desire.

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Is it Mutar to Cheat (just a little)?

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The braisa had stated: If it is an issar less, it is forbidden.

Abaye explains this to mean that the coins cannot be used at its face value if the sela became lacking by an issar more than its price fraud limit.

Rava challenges this interpretation, for if it is even a little more than the limit, it cannot be used at its face value!?

Rather, Rava understands it to mean that if the sela became deficient by an issar to a dinar, it cannot be used any longer at its face value. This would be an anonymous ruling which follows Rabbi Meir’s viewpoint.

Tosfos understands in Rashi that one would be permitted to defraud his fellow if it is less than a sixth, even in a case where he does not intend to return the overcharge. This is because the defrauded party, because it is insignificant, is immediately mochel the “cheater.” It would be permitted to charge exactly a sixth more than its price only if he intends to return the overchatge within the time it would take the other party to show the purchase to a merchant.

The Ritva writes that it is forbidden to defraud your fellow in cases where it is precisely a sixth. This is because people are generally particular regarding these things.

The Ramban maintains that it is forbidden even if it is less than a sixth, for one is not allowed to defraud his fellow whatsoever. If it was less than a sixth, the sages ruled that he is exempt from paying it back. That does not make it permitted.

The Chinuch holds that there is no Biblical prohibition when one defrauds his fellow less than a sixth.

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Shomer Rulings

Money Matters
The Gemora begins by stating that a custodian should keep deposited money on his body, and then later quotes Shmuel’s statement that money must be buried. The Rambam (She’eila u’Pikadon 4:6) explains that when the money is deposited with the custodian at home, he must bury it, while if the deposit was to transport the money somewhere, he must keep it on his body.

Shmuel states that a custodian must guard money entrusted to him by burying it, and anything short of that is negligence.

The Rosh quotes Ri Barceloni that says that Shmuel is only discussing a situation where burglary is common. However, if it is not common, a custodian need only guard the money as he guards his own. The Gemora implies this in its follow up discussion of different ways of storing the money, which the Gemora explicitly ties to the prevailing form of burglars at the time.

The Rambam (She’eila u’Pikadon) seems to imply that Shmuel’s statement is not subject to variation in different times and situations.

The Shulchan Aruch (HM 291:18) rules like the Rosh. See the Gra (HM 291:28) for a discussion of how this debate depends on differing texts in our Gemora.

The Sma (C”M 291:24) says that now that our houses are much more solid than in the Gemora’s time, and therefore a custodian may store the money in a locked house.

Shmuel is also implicitly stating that if the custodian did bury the money, and it was stolen, he is not liable.

The Rishonim debate what the rule for a paid custodian is. Unlike an unpaid custodian, a paid custodian is fundamentally liable for theft, but he is also not liable for unavoidable loss of the deposited item.

The Gemora states a number of times that a paid custodian is not liable for an item that is taken through armed robbery, since that is unavoidable. When a paid custodian buries money, but it is still stolen, he may be liable, since it is theft, but he may not be liable, since it seems like an unavoidable loss.

Rabbi Akiva Eiger (HM 303:2) lists three positions of the Rishonim on this question:
1. Tosfos (BK 57a K’gon) and the Rosh (BM 3:21) say that a paid custodian is liable, even if he buried the money, since that is included in the liability for theft. Every theft is akin to an unavoidable loss, so a theft that is more unavoidable is still a theft. Only in the case of an armed robber, where the paid custodian was present and powerless to stop the theft is considered truly unavoidable.
2. The Ramban says that a paid custodian must keep the money in his presence. Therefore, theft of buried money is not considered unavoidable, and a paid custodian is liable. However, if something unavoidable occurred to the paid custodian, making it impossible to keep the money with him (e.g., a sudden severe sickness), he is not liable.
3. Tosfos (BM 42a Amar Shmuel) says that a custodian is not liable for unavoidable theft, which includes buried money, as well as an unavoidable event which prevented his guarding.

The Rambam (She’eila uPikadon 4:4) applies Shmuel’s statement to any item that has two things in common with money:
1. Valuable enough that burglars look for it
2. Not ruined by being underground
Therefore, blocks of precious metals and stones also must be buried when being guarded.
Diversification
Rav Yitzchak says that one should split his assets in three, with one third going to land. The Maharshsa offers two explanations for this:
1. Buried underground, as Shmuel requires of the custodian
2. Invested in real estate
Unobserved Blessings
The Gemora says that blessing only occurs to items that are not measured and observed.

The Meiri explains that the Gemora is referring to the blessing of successful returns on investments.

Rabbeinu Manoach says that the Gemora means that the blessing will be that the ultimate measure will be larger than the original estimate, in a miraculous fashion.

The Sfas Emes echoes this position, by explaining that Hashem does not make miracles that openly subvert nature, and therefore this blessing only occurs before the produce is measured.

The Ritva quotes the Ramban who says that one makes a brachah on this occurrence only when measuring produce for the purpose of separating tithes, since Hashem promised us a blessing for fulfilling this mitzvah. When otherwise measuring, one is not certain a blessing will occur, so he may not make a brachah.
Household Custodians
The Gemora states that a custodian may entrust his deposited item with members of his household.

The Rishonim debate what the rule is if the ones entrusted were negligent.

Rabbeinu Tam (42b kol) says that the custodian is ultimately liable for the negligence of members of his household, while the Ramban, Rashba (BM 36a) and Rambam (She’eila u’Pikadon 4:9) say that the member entrusted with the item is liable.
The Ox who couldn’t Eat
Rami bar Chama debates how to judge the case of an estate administrator who gave an ox without teeth to a herdsman, where it died. The Gemora explained that the orphans had already voided the sale, so the potential litigant is the seller.

Tosfos (42b Hacha) explains that Rami bar Chama is assuming that we rule like Rabbi Yosi (35b), who says that an owner of an item can directly deal with a custodian appointed by his custodian. Within Rabbi Yossi’s position, Rami bar Chama was unsure whether the seller can address the herdsman via his appointment by the orphans, or whether the orphans are removed from the transaction, since the sale was retroactively voided. Rami bar Chama’s conclusion is that the orphans are considered unpaid custodians, and the seller does have legal standing vis a vis the herdsman.

Rami bar Chama says that the herdsman must pay the seller the value of the ox, when sold for discounted meat.

Rashi explains that this is a compromise. Technically, the herdsman is not truly at fault and not liable, but he does compensate the herdsman minimally for his loss.

Rabbeinu Tam (42b Demai) says that this rule was a bona fide legal obligation. The herdsman should have notified the seller of the ox’s lack of teeth, and therefore is liable for its death. However, since an ox without teeth must be sold for meat, and may not even wait until the day of the market, it would have only been worth the price of discounted meat.

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Ba'al Tashchis

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The Gemora (Bava Kamma 115b) says that it is forbidden to drink from water that has been left uncovered for there is a concern that a poisonous snake drank from it and left its venom inside. Te Gemora rules that one cannot give this water to an animal.

Rashi explains that the rationale is that we are concerned that one may slaughter the animal and it will be dangerous to the person who eats from this animal.

Tosfos points out that Rashi’s approach would only apply to a kosher animal, but in truth this halachah should apply to a non-kosher animal as well, because there is a violation of ba’al tashchis - the killing of an animal for no reason at all.

Tosfos proves this from a Gemora in Avoda Zara 30b that it is only permitted to feed it to a cat (snake eater) which will not be damaged by the venom. This implies that it would be forbidden to feed it to other non-kosher animals that will be poisoned by the venom.

Reb Avi Lebowitz points out something interesting from Tosfos regarding ba’al tashchis. Usually we refer to something as wasteful because it has a function to serve a human and it is being wasted. But in a case where the object provides no direct benefit to a human being, one can argue that it is permitted to waste it without any violation of ba’al tashchis. Tosfos says that this is not true, because even a non-kosher animal, similar to a cat that is not designated to assist people in carrying loads or plowing a field, nevertheless, it cannot be killed for any reason and would constitute a violation of ba’al tashchis.

It is noteworthy that the Halachah L’Moshe writes that according to Tosfos, who maintains that the prohibition against giving these animals to drink from the uncovered water is because of ba’al tashchis, this would apply only to one’s own animal and an animal belonging to his fellow. However, it would be permitted to give this water to an ownerless animal, for this prohibition is not applicable to animals which are hefker.

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Oath Taken Outside of Beis Din

Rav Nachman said (Bava Kamma 106) that if a custodian swears falsely outside of Beis Din and afterwards witnesses testify against him, Rav would concede that he is still liable to pay kefel.

Rashi explains that an oath taken in Beis Din is stronger than one taken outside of Beis Din, and if one swears in Beis Din, the claim against him is dissolved.

It is also evident from the Gemora that if the plaintiff jumped up and adjured the custodian to swear before Beis Din had the chance to impose the oath upon him, and afterwards he admitted, Rav would concede that he is liable in paying the extra fifth and to bring a korban asham, but he will not be liable to pay the kefel.

The Rishonim cite Rabbeinu Chananel who explains that one who is Biblically mandated to take an oath in Beis Din, and he swears outside of Beis Din, or he swore in Beis Din before the court imposed the oath upon him, he is not exempt from his obligation and he can be mandated to swear again.

The Ramban and the Rashba disagree and hold that an oath taken outside of Beis Din is regarded as a valid oath and he would not be required to swear again. Our Gemora holds that one is not liable to pay kefel for such an oath, for it is not as strong as an oath imposed by the court.

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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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An Av and its Toladah

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The Gemora (Bava Kamma 2a) notes: We see regarding Shabbos that there are thirty-nine main categories of melachos (that are forbidden to perform according to Torah law) on Shabbos. This implies that there are sub-categories as well. Regarding Shabbos, we say that the sub-categories are like the main categories. Whether one transgresses a main category or sub-category unwittingly, he must bring a korban chatas. Whether one transgresses a main category or sub-category willfully, he is liable to be stoned. What difference, then, does it make that one is called a main category and one is called a sub-category? The difference is that if one performs two main category prohibitions or two sub-category prohibitions, he is liable twice. However, if he performs a main category prohibition and its sub-category prohibition at the same time, he is only liable for transgressing Shabbos once (and would only bring one korban chatas).

Rashi explains that when one performs an av (main category) together with its toladah (sub-category), he is liable for the av, and not for the toladah. For example, if one planted a tree (av) and watered a plant (a toladah of zore’a), he is liable for the av, and not for the toladah.

The commentators ask: What practical difference does it make if he is liable for the av or the toladah? The bottom line is that he is required to bring one korban chatas!?

Reb Tzvi Pesach Frank suggests the following: The Gemora in Shabbos (71b) rules that if one eats two olive-sized pieces of cheilev (forbidden fats) in one state of unawareness, and he is apprised of the first and he brings a korban. If subsequently, he becomes aware of the second, he is now required to bring another chatas for that one (for the bringing of one korban cannot exempt one from bringing a korban for a violation that he did not know about at the time). Accordingly, if one would perform an av and its toladah together, and he would be apprised of the av, but not the toladah, he would bring a korban for the av. If afterwards he is made aware of the toladah, he would be liable to bring a korban for it, for according to Rashi, one is not liable for a toladah when it is done together with its av.

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Best of Physicians to Gehinom

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The Mishna (Kiddushin 82a) had stated: Abba Guryon of Sidon says in the name of Abba Gurya: A man should not teach his son to be a donkey driver, a camel driver, a wagon driver, a sailor, a shepherd, or a shopkeeper, for their craft is the craft of robbers. Rabbi Yehudah says in his name, Most of the donkey drivers are evil men, and most of the camel drivers are righteous. Most of the sailors are pious. The best of the physicians are destined to Gehinom, and the most righteous of the butchers is the partner of Amalek.

There are several explanations as to the meaning of the Mishna when it states that the best of the physicians are destined to Gehinom.

Rashi understands it to mean that doctors do not fear sicknesses for they eat healthily. They therefore are not humble before Hashem. There are times that they will cause someone to die. They also can refuse to heal the poor if they do not have money to pay for their services.

The Pardes Yosef writes that a doctor must visualize Gehinom opened up before him at all times, for his decisions can lead to someone’s death.

The meaning cannot be that all doctors are destined for Gehinom, for there are many examples of great Torah scholars who were also physicians. Shmuel, Rabbi Chanina, Abba Umna, the Rambam and many more were all doctors. Rather, there are two types of doctors. There are the righteous ones who know that that they can accomplish nothing without Hashem; they are merely Hashem’s agents to heal. There are others, unfortunately, who are not believers. They think that they have the power of healing in their hands. These physicians skip the blessing of “Refa’einu” in Shemoneh Esrei. Accordingly, they have only seventeen brochos in Shemoneh Esrei. This is what the Mishna means: “Tov she’b’rofim” – the numerical value of “tov” is seventeen. Those doctors that have only seventeen brochos in their Shemoneh Esrei are destined for Gehinom.

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Discretion of the Judges - Kiddushin 74

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The braisa continues: A judge is believed to say the following: “I found in favor of this person, and I found against this person.” This is only true if the litigants are still standing before him (for then, he is still responsible to remember how he ruled); otherwise, he is not believed.

The Gemora asks: But let us check to see who is holding the document in which it is written that the verdict was in his favor?


The Gemora answers: The braisa is referring to a case where the document was ripped up.

The Gemora asks: Why don’t we just rejudge the case?

The Gemora answers: The braisa is referring to a case where it was decided based upon “the choice of the judges” (and we therefore are concerned that he will not reach the same verdict the second time).

The Gemora in Kesuvos (85a) cites the following dispute: If a person sold the same field to two people on the same day, Rav says they should split the field, and Shmuel says the law is the choice of the judges (they should decide who to give it to).

The Rishonim disagree as to the method that the judges should use to give one of the claimants the entire field. Rashi explains that “the choice of the judges” means that the judges choose to whom the property in question should be given by attempting to determine, based on logical considerations, to whom the seller would have preferred to give the field.

Tosfos argues with Rashi and maintains that “the choice of the judges” means that the judges give the field to whomever they please. They need not base their decision on whom they think the seller preferred, but rather, they base their decision on whatever considerations they deem appropriate, such as which of the two claimants needs the property more, or which one is a Torah scholar.

The Gemora maintains, at this point, that in general, it is preferable to resolve the case with “the choice of the judges” rather than to split the property, because by using this method, there is at least a possibility that the correct person will receive the entire field. Therefore, according to Shmuel, the judges give the entire field to one of the two claimants.

Kollel Iyun HaDaf discusses why Rav would disagree and hold that the property is divided because of the witnesses’ signatures.

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Converts

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Converts are like Sapachas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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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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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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Don't Call him Evil

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The Gemora Kiddushin Daf 28 states: One who calls someone else a slave should be excommunicated! If he calls him a mamzer, he receives lashes! If he calls him an evil person, he (the insulted person) may descend against his life (he is permitted to hate him to such an extent that he may attempt to reduce his income).

Rashi in Bava Metzia (71a) explains this to mean that the insulted person may fight with him as if the libeler hit him, and it is as if he was coming to kill him. Furthermore, Rashi heard that he can compete against him in his line of business in an attempt to decrease his income.

Rashi asks that it is hard to understand how the Chachamim would allow this person to take revenge.

Some answer that here it is permitted because he suffered personally and he was subject to a public humiliation. The Chafetz Chaim, however, writes that it is unclear if this is the accepted halachah, and therefore, one should be stringent in the matter and not take revenge.

Others answer that it is permitted because if people think that he is indeed an evil person, his income will suffer tremendously, for people will not have compassion on him.

Tosfos in Bava Metzia writes in the name of the Gaonim that it is permitted to burn one-third of his grain. Tosfos concludes that this is bewildering, for where is the source for this?

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The Beautiful Captive

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The Gemora teaches regarding a “beautiful captive” that she should not be subjugated by the soldier during battle.

Rashi learns that the soldier should not cohabit with her during the battle. Cohabitation is not allowed until the captive is brought to the soldier’s house and converts to Judaism.

Tosfos asks four questions on Rashi.

1) Why does the braisa state that the Torah’s permission for a soldier to have relations with a captive is based upon the Torah’s recognition of the strength of one’s Evil Inclination? If according to Rashi, he may not cohabit with her until she converts in his house, how is his desire appeased during the war? Shouldn’t we still be concerned that the beautiful female captives would represent an overwhelming temptation for the Jewish soldier, and he will engage in illicit relationships with them?

Tosfos answers that since she will be permitted to him after some time, we are not concerned that he will be tempted to engage in an illicit relationship with her during the war. He will be able to overcome this desire and wait until she will be permitted to him. This is based upon the concept of having “bread in his basket.”

2) Why does the braisa compare the permission of the beautiful captive with eating meat from a slaughtered animal that had been dangerously ill? It is not so proper to eat such meat, as the Gemora in Chullin (37b) considers it repulsive to eat such meat! But according to Rashi, cohabitation with the captive after her conversion is completely permitted and allowed! What is the comparison between the two?

Tosfos answers that it is nevertheless regarded as a permission b’dieved, because since the conversion is done without her consent, it is not regarded as a bona fide conversion.

3) The Gemora in Sanhedrin (21a) records that Tamar was the daughter of a beautiful captive, Maachah, whom David had taken as a wife. Tamar was therefore permitted to Amnon, David’s son, for she was not regarded as David’s daughter. However, according to Rashi that David did not have relations with Maachah until she converted, why would Tamar be permitted to Amnon? Since she was born from her mother after she converted, it emerges that she was Amnon’s sister, for they shared the same father!?

Tosfos answers that Rashi will learn that Tamar was not the daughter of David at all; rather, Maachah was pregnant with her even before David had taken her from the battle.

4) However, Tosfos concludes that he has no explanation according to Rashi why the Gemora above said that there is a distinction with respect to a Kohen between the initial act of cohabitation and the second act. This is only understandable if the initial act is done during the battle and the second act is done after she converts (which is the way Rabbeinu Tam learns the Gemora). However, according to Rashi, both the second act of cohabitation and the first one are only after she converts! Why would the first be permitted and the second would be forbidden?

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Ancient Cures

The Maharsha (Gittin 69) asks: The Gemora in Brochos (10b) states that Chizkiyahu hid the book of remedies and the sages praised him for this. This book contained instructions on healing various diseases through the use of different herbs and plants. Rashi explains that the sages praised him for hiding the book, because people were relying upon these remedies and they were not praying to Hashem for healing. If so, why does the Gemora record all these remedies here?

The Maharsha answers: A doctor definitely has permission to heal the sick, and he therefore has the right to know the cure for all sicknesses. However, these should not be publicized to all people, for some people will not have faith in Hashem; rather, they will rely on these natural remedies. And just as it was permitted to write down the Oral Law, for otherwise, it would be forgotten; so too, it was permitted to write down these cures, for otherwise, they would all be forgotten.

The Geresh Yerachim answers: the book of remedies that Chizkiyahu hid contained cures that were accurate and functioned for any sick person. If that would have remained in existence, people would rely only on that, and not on Hashem. However, the remedies mentioned in our Gemora do not work for every person. There are many factors that would prevent a person from being cured, even if he followed the exact instructions. Therefore, even when these remedies would be applied, one would still need to pray to Hashem in order to be healed.

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Ransoming for more than their Value

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The Mishna (Daf Yomi: Gittin 45b) had stated: We do not redeem captives for more than their true value for “the benefit of the world.”

The Gemora inquires: Does “the benefit of the world” (with respect to redeeming the captives for more than their worth) relate to the burden which may be imposed on the community (they will all become impoverished), or to the possibility that the bandits will take more captives? [The difference would be in a case where a private individual, such as a relative, wishes to redeem him.]

Come and hear: Levi ben Darga ransomed his daughter for thirteen thousand golden dinars.

Abaye asked: But are you sure that he acted with the consent of the Sages? Perhaps he acted against their will!

Rashi explains that “more than their true value” is referring to the amount that they would fetch if they would be sold in the slave market.

The Meiri writes that their value is based upon their individual wealth and prominence.

The Radvaz rules that we may ransom any captive with the amount of money that is usual to redeem other captives during that time period.

He adds: It has become the custom to redeem captive for more than their worth in the market, for an elderly person or a minor are not worth more than ten dinars, and nevertheless, they are ransomed for more than one hundred dinars. His explanation why there is no concern that the bandits will take more captives is because the captives are not being ransomed for any more that their gentile counterparts. He concludes that nothing should be told to Klal Yisroel about this, for they are a charitable nation, and it is better for them to remain that way.

Tosfos and the Ramban disagree regarding the halachah if the captive himself is allowed to ransom himself for more money than he is actually worth.

The Gemora in Kesuvos (52b) states: If one’s wife was captured and the kidnappers sought ten times her fair value for redemption, the first time the husband must redeem her. Afterwards, if he wants he can and if he does not want he does not have to. Rabban Shimon ben Gamliel states that we do not redeem captives for more than they are worth for “the establishment of the world” (that captors should not thereby be encouraged to demand exorbitant prices for the ransom of their captive).

This issue had an extraordinary public application about 700 years ago. The leader of Ashkenazic Jewry at the time was Rabbi Meir ben Boruch of Rottenberg. He was imprisoned by a German ruler, Rudolph, whose voracity knew no bounds. Rabbi Meir (known as Maharam Mi’Rottenberg) was imprisoned until his death, and his body was not released. The community did not ransom him, as he himself had ruled. Seven years after his death, a private member of the community paid almost all of his own money to release the body, with the stipulation that he be buried next to him.

There is a question whether according to Rabban Shimon ben Gamliel a man would be permitted to ransom his wife if the ransom exceeds her worth. The Ritva holds that he may do so, and the Chelkas Mechokeik disagrees.

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Permitted Rulings

The Gemora (Daf Yomi: Gittin 41b) had stated, applying the classic principle that it is preferable to render a permissible ruling. Rashi in Beitzah (2b) explains that this means that something that is permitted indicates that the Tanna is relying on his knowledge of the subject matter, and is not afraid to rule leniently. One can be strict even if he is in doubt and it does not necessarily indicate the conclusiveness of the ruling.

Rashbam in Pesachim (102a) writes that if there is no compelling logic to rule stringently, then ruling leniently is not regarded as a more preferred option. Rather, it is the only option. The Rema in his responsa (§ 54) rules that one is not allowed to be stringent regarding an issue where there is no uncertainty.

Pischei Teshuvah (Yoreh Deah 116:10) cites a dispute amongst the Acharonim if one is permitted to be stringent for himself regarding a matter that has been permitted by the Torah, such as a prohibited matter that was nullified.

Bnei Yissachar writes that it is a mitzvah not to be stringent in such a situation.

The Tzlach writes that it is preferable to record the permitted ruling regarding a situation that may be subject to a Biblical prohibition, because if there would be uncertainty, we would be compelled to rule stringently. The Tanna would not be introducing a novel ruling if the ruling was that the matter is prohibited. Regarding a matter that may be subject to a Rabbinic prohibition, however, the reverse would be true. It is preferable to record the stringent ruling because if there would be uncertainty, we would rule leniently.

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Mechanics of a pruzbul

We learned in a Mishna: A pruzbul is not made out unless the borrower has some land. If he has none, the creditor can give him ownership (through a third party) from any amount of his own land (and then a pruzbul may be written).

Rav Chiya bar Ashi said in the name of Rav (Daf Yomi: Gittin 37a): Even land the size of a carob stalk is sufficient.

Rav Yehudah said: Even if the creditor only lends him a place sufficient for the borrower to put his stove or oven, a pruzbul may be written because of it.

Rashi explains that the Rabbinical establishment of a pruzbul is only for a usual case, and since, generally, one did not lend money to someone who did not possess land, a pruzbul cannot be written in such a case.

The Rashba asks on Rashi: Is the case where the creditor lends the debtor land in order to collect from considered a usual case? Why there did we allow a pruzbul to be written? He explains that the Rabbis did not differentiate between the cases, and as long as the debtor has some property, a pruzbul may be written.

The Tumim (67:22) writes that it would seem from Rashi that the debtor is required to have land at the time of the loan, for then, it will be usual for the creditor to lend him money. However, there is no necessity for him to have land at the time that the pruzbul is being written! This, he states, is bewildering, for the primary reason for the land is that the creditor should have what to collect from!?

He answers that this case would also be an unusual one. For it is not common for a debtor to have land at the time of the loan and afterwards sell it, for there will not be many purchasers interested in buying land that is pledged to a creditor. Therefore, the presumption is that if he had land at the time of the loan, he would still have land at the time the pruzbul is being written.

Accordingly, the Tumim concludes, that if the loan would be a verbal one, and there is no land to collect from, it is not considered a usual case and a pruzbul would not be written.

The Rash explains differently. He states that a pruzbul is written only when the debtor has land, for then, the debt is regarded as if it has been already collected. This is comparable to the case where he lent with a collateral, where in that case, shemitah does not cancel the loan for that very same reason.

The Rashbam in Bava Basra (66a) also explains like that, but he adds that when the debtor has land, it not completely regarded as if it is paid already like the collateral case; rather, it appears as if there is a security on the loan. If there would be a collateral, shemitah would not cancel the debt according to the Biblical law. The Chachamim did not want to establish this institution in a manner that appeared as if they were uprooting a halachah from the Torah.

The Ran writes that there is an apparent distinction between the two explanations. According to the Rash, it would be necessary for the debtor to possess the land at the conclusion of shemitah, for then is when the loan would be cancelled. According to Rashi, it is only necessary for the debtor to possess land in the beginning, for then it is a usual circumstance, and a pruzbul may be written.

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