Land and Slaves

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The Mishna says that slaves share the status of land regarding the exclusions listed. Therefore, a sale of a slave is not subject to the rules of ona’ah. Abaye says that a rental is subject to the rules of ona’ah, since it is equivalent to a temporary sale.

The Rishonim explain that Abaye is only referring to rental of items whose regular sale is subject to ona’ah, but rental of land is not subject to ona’ah, similar to a permanent sale of land.

The Rishonim discuss whether hiring a worker is subject to ona’ah. The Ramban and Rashba say that hiring a worker is not subject to ona’ah, since the Torah states that ona’ah applies when buying or selling a “mimkar” - a sale item. When hiring a worker, there is no sale item per se, and therefore no ona’ah.

The Rambam (Mechira 13:15, 17) says that hiring a worker is not subject to ona’ah, since it is akin to renting a slave. Since buying a slave is not subject to ona’ah, renting one – which is a temporary sale – is also not subject to ona’ah. However, the Rambam says that when hiring a worker for a project, as opposed to hourly work, ona’ah does apply, since such a transaction is not considered a temporary sale of a slave, but a proper transaction of merchandise.

The Drisha (227:47) explains that a slave is defined by his time being owned by his owner. Therefore, an hourly worker can be considered temporarily enslaved, since during his employment period, his time is owned by the employer, while a project worker is not even temporarily enslaved, since his time is always only his. Since the Rambam exempted employment as a function of a slave’s exclusion, project work, which is not similar to a slave’s work, is not exempted. However, the Ramban and Rashba offer a more fundamental reason to exempt employment from ona’ah, and therefore apply this to all types of employment, including project work.

This dispute among the Rishonim would seem to depend on a general dispute among the Rishonim about exclusions of slaves. Rashi (Kiddushin 7a, 28a) and Tosfos (Megilla 23b Shamin) say that whenever the Gemora makes halachic statements about slaves, this applies to any person, even if he is free. Therefore, the Gemora (Kiddushin 7a) considers a wife being betrothed to be equivalent to real estate (as far as modes of acquisition), and the Gemora (Kiddushin 28a) treats someone’s claim that one is his Jewish slave to be equivalent to a dispute over land (as far as swearing). Tosfos (Kiddushin 7a, 28a) and the Ritva (Kiddushin 28a), however, say that the categorization of slaves as equivalent to land only applies to Kena’ani slaves, and not to free people, or even to Jewish slaves. The Tur and Shulchan Aruch (HM 227:33,36) rule like the Rambam.

The Shach (HM 95:18) rules that the halachic rules of a slave apply to all people, since the Torah is simply using slaves as a vehicle to explain that human acquisition is equivalent to land acquisition. In general, only Kena’ani slaves are acquired, which is why the Torah used them to teach this rule.This is consistent with the position of the Shulchan Aruch.

The Kovetz Shiurim (Bava Basra 310) suggests that the Rambam may not rule that the laws of slaves apply to all people. However, this is because only a slave can be truly permanently acquired, while other situations (e.g., a wife or Jewish slave), are only temporary, and cannot be compared to land. However, in regard to ona’ah, the exclusion of a slave also excludes hourly employment. Abaye explained that ona’ah applies to rental, only since it is considered a temporary sale. Therefore, a rental is subject to ona’ah where an equivalent permanent sale is subject to ona’ah. Although the employee does not have the rules of a slave, and cannot be permanently bought, employment’s theoretical permanent counterpart would be enslavement, which is not subject to ona’ah. Therefore, the temporary sale of employment cannot be subject to ona’ah, since ona’ah derives from considering a rental as a temporary sale, as Abaye stated.

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U'bi'er

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The Gemora (Bava Kamma 14) explains that one braisa speaks of a case where a yard was set aside for both of them for the purposes of both keeping produce and their oxen (it is therefore not regarded as “the field of another,” and he would not be liable for shein and regel), whereas Rav Yosef’s braisa deals with a yard set aside for keeping produce in but not cattle, in which case, as far as shein is concerned, the yard is regarded as the yard of the damaged party (because the damager has no permission to bring his ox in).

Rabbi Zeira challenged this explanation: In the case where the yard was set aside for keeping produce in (for both of them), how can the there be liability for shein and regel when the field does not fulfill the condition of being “the field of another” (since the damager has the right to keep his produce there as well)?

Abaye said to him: Since the yard is not set aside for keeping cattle in, it may well be termed “the field of another.”

Reb Elchonon Wasserman explains the dispute as follows: It is written regarding shein: ubi’er b’sadeh acher – and it consumes in the field of another. The argument is regarding the word ubi’er. Is it in reference to the act of damaging, or is it in reference to that which is damaged?

Rabbi Zeira holds that it is in reference to that which is damaged. The produce is what is getting damaged. And since with respect to the produce, they both had permission to keep their produce in the yard, it is regarded as a jointly owned courtyard – and with respect to the damage of shein, it is considered a public domain, and the damager is exempt from liability.

Abaye, however, holds that the word ubi’er is in reference to the act of damaging. The ox is the one who committed this damage. And since the damager has no right to bring his ox into the yard, it is regarded as the “field of another,” and therefore, he would be liable.

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Kiddushin at Night

The Mishna had stated: The monetary transaction, according to Beis Shamai, must be done with a dinar or the equivalent of a dinar.

The Gemora Daf Yomi Kiddushin 11a asks: What is Beis Shamai’s reasoning?

Rabbi Zeira answers: A woman is particular that she should not become betrothed for less than a dinar.

Abaye asks: If so, what about the daughters of Rabbi Yannai, who are generally particular not to accept kiddushin of less than three kav of gold dinars? Are you saying that if she would accept only a dinar from someone that it would not be a valid kiddushin?

Rabbi Zeira responds: If she would knowingly take this amount of kiddushin, indeed it would be valid. The case I am referring to is if she took the money at night (and was unable to see the value of the coin). Alternatively, the case is where she made a messenger to accept kiddushin for her, and did not specify how much she wants.

The Mizrachi maintains that a get given at night is Biblically invalid. Accordingly, the halachah should be that kiddushin given at night is also invalid, for kiddushin is juxtaposed to geirushin (divorce).

The Acharonim challenge this ruling from our Gemora which clearly states that a kiddushin given at night is valid!?

The Shaar HaMelech writes that our Gemora can be referring to a kiddushin where the man gave money to the woman at night, for kiddushin through money is not derived from geirushin. The Mizrachi, however, is referring to kiddushin through a document. That will not be valid if done at night, for that we derive from geirushin.

Reb Elchonon Wasserman disagrees and states that the Rishonim who assert that kiddushin through money is not learned out from geirushin only say that with respect to the act of kiddushin, and that is why kiddushin is valid with using something that is connected to the ground (even though a get of that type will be invalid). However, with respect to the validity of the kiddushin, all types of methods of kiddushin are derived from geirushin (and then the halachah of invalidating a kiddushin occurring at night can quite possible be derived from geirushin, even when it is done through money).

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Expert in all Areas

Rabbi Yehudah ben Beseira Daf Yomi Kiddushin 10a sent back to Ben Bag Bag: You do not hold this way? I understand that you are an expert in many areas of the Torah. Don’t you know how to derive a kal vachomer?

Why must he be an expert in many areas of the Torah in order to expound a kal vachomer? Isn’t a kal vachomer based upon logic?

Reb Elchonon Wasserman cites from Reb Chaim Brisker who explained as follows: One need not be an expert to expound a kal vachomer; however, the kal vachomer might be refuted from another area of Torah. In order for one to expound a kal vachomer that will not be refuted from anywhere else in the Torah, he must be an expert in all areas of Torah.

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Minor Writing a Get

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

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

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

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

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

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Ben Azzai

Rav Yitzchak bar Yosef said in the name of Rabbi Yochanan (Daf Yomi: Sotah 4b): All of these Tannaim figured out the length of a seclusion based upon their own experience (how long it took each of them to perform the initial act of cohabitation with their own wife).

The Gemora asks: But Ben Azzai never got married (based upon the Gemora in Yevamos 63b, where Ben Azzai explained why he did not marry: “What should I do? My soul desires the Torah. The world can survive through other people.”)?

The Gemora answers: You could say that he got married and later divorced.

Alternatively, you can say that he heard this opinion from his teacher.

And if you prefer, you can say that “The secrets of Hashem are revealed to those that fear him.”

Rabbeinu Avraham min Ha’har explains that due to Ben Azzai’s tremendous desire to study Torah, he did not experience any unclean thoughts, and was therefore not obligated to get married.

Reb Elchanan Wasserman states that Ben Azzai was exempt from the mitzvah of marrying, for he was unable to cease studying Torah even for one moment.

Reb Yosef Engel writes that Ben Azzai discharged his obligation of procreation through his new insights in Torah. This is based upon the Gemora in Brochos (47b), which states that two torah scholars studying together can be regarded as three with respect to the laws of Birchas Hamazon (they could make a mezumen, even though the halacha is that three people are needed). The Rosh explains that the Torah that they are studying is regarded as the third person.

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Is the Fetus a "Swallowed Item"?

The following halacha is derived from our Gemora (Nedarim 75b): If a person swallows a tahor ring and subsequently enters a room containing a corpse, the ring does not contract tumah. This is based on a Gemora in Chulin (71b), which states that a “swallowed item” does not contract tumah.

The Minchas Chinuch (263:3) asks the following question: How can Rabbi Akiva in Chulin (72a) rule that a fetus inside of its mother’s womb can Biblically contract tumah? Shouldn’t the fetus be regarded as a “swallowed item,” and therefore, be shielded by the mother’s body from becoming tamei?

He answers that the fetus is considered like a thigh of its mother and therefore is rendered tamei just like any other one of the mother’s limbs.

The Magen Avraham (O”C 343:2) cites the Rokeach as saying the following: Concerning a pregnant wife of a Kohen, she is permitted to enter into a room that contains a corpse (even though the baby might be a male and cannot become tamei). The rationale is based upon a “double doubt.” Perhaps she will miscarry, and even if she will not, perhaps the child will be a female, not a male!

The Magen Avraham asks: Why is this logic necessary? It should be permitted because the fetus can be regarded as a “swallowed item,” and hence, cannot become tamei?

Reb Elchonon Wasserman in Koveitz Shiurim (2:41) answers: A Kohen is forbidden from entering into a room that contains tumah (regardless of becoming tamei). A “swallowed item,” although it does not become tamei, it is nevertheless, considered as if it is inside the room. Therefore, the principle of a “swallowed item” will not permit her to enter the room.

According to the Minchas Chinuch, we can answer that the fetus is not regarded as a “swallowed item,” and therefore will not be a reason to permit her to enter.

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Paying Up a Debt of his Fellow

The Gemora (Nedarim 33) rules regarding one who is forbidden by a vow to derive benefit from his fellow; the fellow is prohibited to repay his debt (in a regular case).

Reb Elchonon Wasserman discusses the rationale behind this ruling. Is it prohibited because the one who pronounced the vow is directly benefiting from the money that is being used to repay his debt? Or, perhaps it is because the fellow is causing the lender to forgive the borrower for his debt (once he has the money from elsewhere), and it emerges that he is indirectly receiving pleasure from the fellow?

This question is actually dependent upon a different question: Can someone pay up the debt of his fellow and cause that the debt has been paid? Or, perhaps only the borrower can repay a debt; his friend may give money to the lender with the stipulation being that the lender will forgive the borrower from the debt which he owes?

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Paying Up a Debt of his Fellow

The Gemora (Kesuvos 108a) rules regarding one who is forbidden by a vow to derive benefit from his fellow; the fellow is prohibited to repay his debt (in a regular case).

Reb Elchonon Wasserman discusses the rationale behind this ruling. Is it prohibited because the one who pronounced the vow is directly benefiting from the money that is being used to repay his debt? Or, perhaps it is because the fellow is causing the lender to forgive the borrower for his debt (once he has the money from elsewhere), and it emerges that he is indirectly receiving pleasure from the fellow?

This question is actually dependent upon a different question: Can someone pay up the debt of his fellow and cause that the debt has been paid? Or, perhaps only the borrower can repay a debt; his friend may give money to the lender with the stipulation being that the lender will forgive the borrower from the debt which he owes?

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Causing the Loss to Who?

Rav Kahana and Rav Assi asked Rav (Kesuvos 89b): According to you, who maintains that if the woman produces her get, she would collect the primary amount for her kesuvah (even without producing her kesuvah), with what evidence, may a woman, widowed from nisuin, offer in order to collect her kesuvah? The answer is obvious: She brings witnesses that her husband died! However, the question may be raised, let us be concerned that she was previously divorced, and later, she will produce the get and collect the primary amount of her kesuvah with it (since Rav is of the opinion that we do not write a receipt for the inheritors)?

Rav answers: She may collect her kesuvah only if we know that she was living with her husband until he died (and there was no divorce).

They asked: But perhaps, he divorced her right before he died?

Rav replied: If that was the case, he has caused the loss upon himself.

Reb Elchonon Wasserman in Koveitz Shiurim (319) asks: Why would the inheritors be obligated to give her the kesuvah in this case; the father is not causing the loss to himself; he is causing a loss to his heirs, who will now be responsible to pay her for the kesuvah?

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Food for Thought - Kesuvos 58

*** There are several different opinions as to the amount of terumah a groom should provide to his bride prior to the nisuin.

Rabbi Yehudah ben Beseira said: We give her two thirds terumah and one third chulin (unconsecrated produce).

Maharshal comments: An average time for a woman to menstruate (consequently, she is tamei and forbidden from eating terumah) is once every thirty days. The normal flow of blood is for three days. In addition, she must observe seven days of cleanliness prior to becoming tahor and only then will she be permitted to eat terumah again.

Rav Elyashiv Shlita asks: Where did the Maharshal find that an ordinary woman menstruates for three days? It is our custom to wait five days!?

*** The Mishna had stated: The yavam does not entitle his yevamah to eat terumah.

The Gemora explains the reason for this: It is written [Vayikra 22:11]: The acquisition of his money, he may eat of it. Only a Kohen’s own acquisition may eat terumah; however, a yevamah is the acquisition of his brother, not his own.

Rashi maintains that even if the yevamah began eating terumah while her husband was alive, she will be required to cease eating terumah once he dies.

Rabbeinu Tam disagrees and holds that Biblically, once a yevamah obtained the right to eat terumah, she preserves that right even after the husband dies. It is merely a Rabbinical prohibition; the verse cited in the Gemora is only an asmachta (used as support for the Rabbi’s decree).

Reb Elchonon Wasserman in Koveitz Shiurim (183) asks: Why does Rabbeinu Tam hold that the yevamah is Biblically permitted to eat terumah even after her husband died? She is not the wife of a Kohen any longer; she doesn’t have any offspring from the Kohen (which would have allowed her to continue eating terumah) and she is not yet the acquisition of the yavam!?

[Perhaps, this challenge can be answered by examining the concept of the zikah-attachment between the yavam and the yevamah.]

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‘KIM LEIH B’DIRABAH MINEIH’ IN A CASE OF UNCERTAINTY

Reb Akiva Eiger rules that if one seduces an idolater, he is exempt from paying a fine because of the principle of ‘kim leih b’dirabah mineih,’ one incurs the more severe penalty of death and he is not liable for the monetary payments. Since the halacha is: Zealots have a right to kill one who cohabits with an idolater, he will not be required to pay the fine. If, however, it is uncertain if the girl is a Jew or an idolater, he will be liable for the fine because in this situation, the zealots cannot kill him.

Reb Elchonon Wasserman in Koveitz Shiurim (84) learns from here that whenever it is uncertain if the principle of ‘kim leih b’dirabah mineih’ applies, he would still be liable for the payment.

Reb Yitzchak Zilberstein comments that if not for Reb Elchonon, a distinction could have been made between a court-imposed death penalty and a case where one incurs death by the hands of the zealots. In a case of an uncertainty regarding a court-imposed death penalty, such as one who desecrated Shabbos in a time where it is uncertain if Shabbos has started or not (bein hashemoshos), and at the same time he burned the stalks of his fellow, he would be exempt from paying for the damages. The reason is as follows: Even though, Beis Din cannot administer the death penalty, he would be exempt from paying because he might be liable for death. However, in a case where one does not incur a death penalty; it is a transgression where zealots have a right to kill him. In a case of uncertainty, where he may not be killed, he should certainly be responsible for the monetary payments involved.

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PATERNAL RELATIONSHIPS OF NON-JEWISH FATHERS AND SONS - Yevamos 98 - Daf Yomi

A braisa had stated: If there were twin brothers whose conception was not in sanctity, but their birth was in sanctity (their mother converted after conception, but before they were born), they do not perform chalitzah or yibum, but they would be liable to the punishment of kares if they would cohabit with their brother’s wife.

Rava seeks to explain why these brothers are regarded as maternal brothers (and are
liable for the prohibition against cohabiting with a brother’s wife), but they are not regarded as paternal brothers (and that is why they are not subject for yibum and chalitzah). Rava said: The Rabbis said that an Egyptian, who converts has no father. This is so, even if we know with a certainty the father’s identity. This can be proven from the braisa cited above regarding twin brothers, where one drop of semen (from their father) divided into two, and the braisa rules that they are not subject to the laws of yibum and chalitzah. It seems evident from here that the Torah voided their paternity, as it is written [Yechezkel 23:20]: Their flesh (the Egyptians of old) is the flesh of donkeys and their issue is the issue of horses. (A Jewish child that converted is considered halachically fatherless.)

Reb Elchonon Wasserman in Kovetz Heoros (51:3) asks: It is evident from our Gemora that the Torah voided the paternal lineage of an idolater, yet the Gemora above (62a) clearly states that they do have lineage. The Gemora cited a verse [Melachim II 20:12]: At that time, Berodach-baladan son of Baladan, the king of Bavel, sent etc. We see that an idolater is identified as the son of another idolater.

Reb Elchonon answers: The Gemora above is referring to a case where an idolater cohabited with another idolater and had a child. That child is regarded as being the son of that idolater. Our Gemora is discussing a case where an idolater cohabited with a Jewess, or with another idolater and she converted while she was pregnant. In these cases, we do not recognize the paternal relationship. (It would seem to me that this is precisely what Rish Lakish stated in the Gemora 62a. Rish Lakish said: While they are idolaters, they have genealogical connections to their offspring; once they convert, they lose that connection.)

Reb Elchonon concludes that this distinction will not be halachically correct according to the Ramban. The Ramban states that the Torah voided the paternal relationship between a non-Jewish father and their sons even as idolaters. The reason why an idolater son inherits his father is unique to the laws of inheritance.

I found that Rabbi D. Bloom from Kollel Iyun Hadaf discusses the Ramban’s opinion in an insight to Bechoros 46.

(Please click the "read more" link to view the rest of the post.)

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THE FIRSTBORN SON OF A WOMAN WHO CONVERTED WHILE PREGNANT

QUESTIONS: The Mishnah states that if a Nochri, who had sons, married a woman who never had children and they later converted while she was pregnant, her firstborn son is considered the Bechor with regard to Pidyon ha'Ben, but not with regard to inheriting the double portion of his father's estate. RASHI (DH Nisgairah) explains that the husband converted together with the wife. The baby is a Bechor and must be given to the Kohen, because he is the first to emerge from the mother's womb ("Peter Rechem") and is a Yisrael. However, he is not a Bechor with regard to inheritance, because he was conceived "she'Lo b'Kedushah," before the conversion. The Torah teaches that a Ger does not have familial ties to his father, as the verse states, "Zirmas Susim Zirmasam" (Yechezkel 23:20).

Rashi's explanation is difficult to understand. (a) First, why does Rashi need to mention the reason that the offspring of a Mitzri has no familial ties? There seems to be a more basic reason why the child does not inherit from his father, and that is because of the principle, "Ger she'Nisgayer k'Katan she'Nolad Dami" -- a Nochri who converts is like a newborn child. Accordingly, the baby, after his conversion together with his mother, has no familial bond to his biological father. Why does Rashi not mention this reason?

(b) The RAMBAN (Chidushim to Yevamos 98a) states that the principle that the offspring of a Nochri is not related to its father ("Afkerei Rachmana l'Zar'ei") applies even when the Nochri does not convert. For this reason, a Nochri is permitted to marry relatives from his father's side, even though he is forbidden to marry those same relatives from his mother's side. The Ramban there adds that when the Gemara in Kidushin (18a) says that a Nochri inherits his father, it means that there is a Gezeirah Shavah that even though he is not considered to be related to his father, he still inherits him.

We see from the words of the Ramban that the principle of "Afkerei Rachmana l'Zar'ei" does *not* prevent the son from inheriting! Why, then, does Rashi write that the reason why the son does not inherit his father is because of "Afkerei Rachmana l'Zar'ei"? (See also TOSFOS DH Nisgairah.)


ANSWERS:
(a) RAV SHMUEL ROZOVSKY zt'l (in Chidushim to Yevamos 12:4, DH v'Hineh) answers that Rashi in Yevamos (98a, DH Ha d'Amur, and DH Lo Teima) indeed writes that a baby born after the conversion is not considered a "Katan she'Nolad," even though he was conceived before the conversion. Accordingly, Rashi was forced to find a different reason to explain why the child does not inherit his father.

(b) Rav Shmuel Rozovsky (ibid., DH Achen) answers the second question by pointing out that the reason why a Nochri inherits his father even though they are not considered related is because of a Gezeiras ha'Kasuv, as mentioned above. However, it must be that this Gezeiras ha'Kasuv is a special Halachah that applies only to Benei Noach; once a Nochri converts and is no longer a Ben Noach, this special Halachah no longer applies to him. If not for the reason of "Afkerei Rachmana l'Zar'ei," the son would have had a connection to his father and would have inherited him after converting, because -- according to Rashi in Yevamos -- in the case of a mother who converted while pregnant, the law of "Ger she'Nisgayer k'Katan she'Nolad" does not apply to the baby. Therefore, Rashi writes that the child has no connection to his father because of "Afkerei Rachmana," and that is why he does not inherit him after conversion. The law that every Nochri (who did not convert) inherits his father is due to a different Halachah -- a special Gezeiras ha'Kasuv among the Halachos of Benei Noach which does not apply to this baby, who is now a Yisrael.
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Reb Chaim Qoton discusses a similar issue here: rchaimqoton. Rav Papa says (Bechoros 47a) that if the daughter of a Levite (a Bas Levi, or Levia) and non-Jew have a firstborn baby boy together, the child is exempt from the Kohanic redemption of the firstborn because the boy is a Levite. How can the boy be a Levite if Levitical status is reliant on the father’s lineage and the father, as a non-Jew, lacks any lineage (Yevamos 98a)? Rabbi Chaim Brisker (al HaRambam Hilchos Issurei Bi’ah 15:9) explains that a Levi is not exempt from this requirement of redemption because he is part of the tribe of Levi, for tribal affiliation is inherited paternally. Rather the reason the boy is exempt is that he himself is a Levi as determined by his genealogy from his mother, albeit his tribal affiliation is not Levitical. According to this, one can properly be called a descendent of Levi'im by just having a Levia as a mother, but would not be called part of the tribe of Levi unless his father was also a Levite. In the opinion of Rav Papa, the exemption from the redemption of the firstborn comes from just being a descendant of Levi (usually from the father’s side, but if the father lacks lineage because he is not Jewish, then from the mother’s side), so even if the boy is not a Levite, he is exempt from the redemption. Tosafos (Bechoros 47a) assert that even if this boy is considered a non-Jew, he is still considered a Levi according to Rav Papa.

[END]

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WHEN TORAH CONFLICTS WITH MARRIAGE - Yevamos 62 - Daf Yomi

Reb Elchonon in Kovetz Shiurim (Chelek Beis Siman 19) brings a Rambam that says: If one is learning and is concerned that getting married will interfere with his learning, he may delay getting married, because one who is involved in a mitzvah is exempt from doing another mitzvah and even more so, by learning Torah.

Reb Elchonon asks based on a Gemora in Moed Katan (9a) that a mitzvah that cannot be done by others, one is obligated to stop learning in order to do the mitzvah, and we don't say under those circumstances, since he is already involved in one mitzvah, he shouldn’t be obliged to perform the other mitzvah. Why does the Rambam rule that one who is learning Torah is exempt from the mitzvah of marrying; marriage is a mitzvah that only he can perform?

He answers that the fact that he is able to delay the performance of the mitzvah, and later on, he will perform it, that is tantamount to a mitzvah that others are able to perform. Regarding such mitzvos, we can apply the principle of osek b’mitzvah patur min hamitzvah, since he is preoccupied with the mitzvah of learning Torah, he is temporarily exempt from the mitzvah of marriage.

He continues that the mitzvah of learning Torah is incumbent on a person only when he is free from his life obligations, such as sleeping, eating, working for his family’s sustenance and taking care of his bodily functions.

by Rabbi Eliezer Jacobovits

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WIFE OF A KOHEN - Yevamos 57 - Daf Yomi

Reb Elchonon Wasserman states a distinction between the wife of a Kohen eating terumah and the Kohen’s Canaanite slaves and slavewomen. Although their entitlement to eat terumah is derived from the same verse, “An acquisition of his money,” there is a basic distinction between the two of them.

A Canaanite slave and slavewomen do not have any elevated status by the fact that they now belong to the Kohen. The Kohen is permitted to feed his animals terumah, and so too, he can feed his slaves terumah. This is why there is no halacha regarding a slavewoman of a Kohen committing adultery and thereby disqualifying herself from eating terumah. She does not have an inherent right to eat terumah; the Kohen can feed her terumah if he so desires.

The wife of a Kohen is different. By virtue of the fact that she is married to a Kohen, she assumes an elevated status. She has a privilege of eating terumah; it is not necessary for the husband to feed her terumah. She possesses a higher degree of sanctity, but she can lose that as well. If she becomes a zonah or chalalah, she becomes disqualified, and cannot eat terumah any longer.

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Desecrating his Words - Yevamos 34 - Daf Yomi

The Mishna in Makkos states that a person can commit one action of plowing and be liable for eight transgressions.

The Gemora asks: Couldn’t the Mishna list a ninth; if he took an oath not to plow on Yom Tov?

The Gemora answers: He has already been sworn from Har Sinai not to violate Yom Tov and therefore the oath does not take affect.

The Ran explains the principle: An oath must be regarding something voluntary; anything that a person is obligated to do regardless of his oath is not binding. However, this is only relevant to the bringing of a korban chatas if he would violate the oath, but in respect of transgressing the oath intentionally, he would incur the thirty-nine lashes.

Reb Akiva Eiger asks on the Ran from the Gemora in Makkos: The Gemora was discussing the amount of lashes one could possibly receive for committing one action that entails many different transgressions. The Gemora states that an oath cannot be included for a person is sworn from Har Sinai prior to uttering the oath against plowing on Yom Tov. According to the Ran, it should still be included because it is another prohibition that incurs the penalty of lashes?

Reb Akiva Eiger understands the Gemora that the oath does not have any validity whatsoever because of the principle that one prohibition cannot take effect on an existing prohibition.

Reb Shmuel Rozovksy asks: Why don’t both prohibitions take effect simultaneoulsy; the oath does not take effect until the beginning of Yom Tov and that is precisely the same moment that the prohibition against engaging in labor on Yom Tov commences?

Reb Elchonon Wasserman states: The principle that one prohibition cannot take effect on an existing prohibition is not applicable to an oath. He cites a Tosfos as proof to this: Tosfos states that the principle of one prohibition not taking effect on an existing prohibition would not apply to a case where one eats on Yom Kippur and simultaneously carries the food in his mouth from one domain to another. Although, the swallowing of the food causes both transgressions it is regarded as two different actions; swallowing and carrying.

Reb Elchonon explains regarding one who violates an oath by eating something he swore not to eat or by plowing a field when he swore that he wouldn’t; the transgression is not the eating or plowing, but rather the desecration of his words the oath. It is therefore not considered the same action which causes the other prohibition, and the principle of one prohibition not taking effect on an existing one would not be applicable.

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THE PROHIBITION OF A WIFE’S SISTER EVEN AFTER THE WIFE’S DEATH - Yevamos 32 - Daf Yomi

The Gemora cites a braisa: (Three were two brothers, Reuven and Shimon that were married to two sisters, Rochel and Leah. Reuven died childless, leaving his wife Rochel to fall for yibum to Shimon. Shimon cannot perform a yibum at this time for Rochel is his wife’s sister.) If Shimon went ahead and cohabitated with Rochel (while his wife was still alive), he has violated two prohibitions; his brother’s wife and his wife’s sister. These are the words of Rabbi Yosi. Rabbi Shimon said: He is only liable for the prohibition against taking one’s brother’s wife.

Rashi specifically mentions that this dispute is referring to a case where he cohabitated with her while his wife was still alive. The Rashba and other Rishonim explain that Rashi is coming to exclude the opinion of Rabbeinu Chananel, who understands this sugya as referring to a case where his wife had already died (like the case of the Mishna).

All the Rishonim ask on Rabbeinu Chananel: How can he possible learn that these Tannaim are discussing a case where his wife had already died and nevertheless, there should still be a prohibition against taking one’s wife’s sister? There is no argument to the halacha that a wife’s sister is permitted after one’s wife has already died.

Reb Avrohom Erlanger in Birchas Avrohom attempts to answer this question. He prefaces his remarks by saying that what he is about to say is a novel idea, but we must at least attempt to explain the viewpoint of Rabbeinu Chananel.

Let us examine the permissibility of the wife’s sister after the wife dies. Is the name of the initial prohibition “a wife’s sister, while the wife is alive”? (It would not be called a prohibition that is dependent on time, i.e. the lifespan of his wife because the prohibition is only until then.) Or perhaps the prohibition of a wife’s sister is forever, similar to any other ervah; the Torah reveals to us that the death of the wife permits her sister to be taken by the husband?

A possible difference in halacha between these two possibilities would be in a case when we are uncertain if the wife died. Would there be a chazakah that the wife’s sister is still forbidden to him? Reb Elchonon Wasserman states that the principle of chazakah can only be applicable if the original prohibition was forever and the uncertainty is regarding a change in the status.

Although the simple explanation would be that the wife’s sister prohibition is initially only relevant during the lifespan of his wife; if we learn differently, we can explain the opinion of Rabbeinu Chananel.

He maintains that the prohibition of a wife’s sister is forever, but there is a halacha that the death of the wife is a matir, permits her to be taken by the husband.

Reb Shimon Shkop states that in order for one prohibition to take effect on an existing prohibition, it must have halachic ramifications. Perhaps we can say similarly regarding the permission emerging form the death of the wife. If her death will result in a permission for the sister to be taken by the husband, the death will permit her; however, if the wife’s death will not bring about such a consequence because she will anyways be forbidden to the husband on account of being his brother’s wife, the death of the wife will not remove the wife’s sister prohibition, and she will still be forbidden to the husband on account of being a wife’s sister as well.

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ONE THOUSANDTH POST - HEAVENLY VOICES - YEVAMOS 14

The Gemora states that a heavenly voice declared that the halacha follows the opinion of Bais Hillel.

Reb Elchonon says that he found in seforim (Mikdash Melech in the name of the Arizal – he doesn’t cite this) that in the future world, the halacha will follow the opinion of Beis Shamai.

He explains: In truth, Beis Shamai had the sharper minds, but due to our intellectual deficiencies, we were not able to fully grasp and understand their intent; a judge can only rule according to what he sees in front of him and that is why we rule according to Beis Hillel in this world. It is written regarding the future that the world will be full with wisdom; Beis Shamai will be understood, and we will rule according to them.

I once heard that if one analyzes the disputes between Beis Shamai and Beis Hillel, one can reach the following conclusion: Beis Shamai rules according to the spiritual level and Beis Hillel rules according to the physical level. This will explain why we rule according to Beis Hillel in this physical world, and in the World to Come, the spiritual world, we will rule according to Beis Shamai.

The Gemora cites the opinion of Rabbi Yehoshua: He maintains that we do not pay attention to a heavenly voice dictating who the halacha should follow.

The Gemora later (122a) states: A woman can get married on account of a heavenly voice. This means that if her husband went overseas and a heavenly voice declares that her husband died, she is permitted to get married.

The Tosfos Yom Tov states that this is not referring to a heavenly voice since we rule that one does not pay halachic attention to a voice emanating from heaven.

Reb Elchonon explains differently: We do not pay attention to a heavenly voice regarding halachic matters because Torah is not in the heavens; it was given to human beings. The Sages of Klal Yisroel have the authority to resolve all halachic matters, not the heavens. However, a heavenly voice can resolve a factual doubt. We would not rely on a heavenly voice in regards to something that requires two witnesses. The Chachamim were lenient in regards to the testimony of a woman and they relied on the words of even one witness; that is why a heavenly voice can be believed in this matter.

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Daf Yomi - Yevamos 12 - RELYING ON PIKUACH NEFESH L’CHATCHILAH

Reb Elchanon (Kovetz Hearos 23) discusses whether it is permitted for a person to put themselves into a situation where they will have to use the permissibility of pikuach nefesh (they are in mortal danger) to permit what otherwise would have been regarded as a prohibition.

Reb Avi Lebovitz (Hearos on the Daf/) explains Reb Elchonon: He proves from the Ba'al Hameor who forbids leaving on a ship within three days of Shabbos because it is likely that you will find yourself in a situation of pikuach nefesh and have to be desecrate the Shabbos, that it is only a Rabbinical prohibition, but not Biblical (if it would be an Biblical, it should not matter if it is within three days or more than three days). Once it is only a Rabbinical prohibition, we can permit it for shalom bayis purposes. Therefore, one would be allowed to have relations with a woman for whom it is dangerous to become pregnant, even though after relations she will use a 'moch' to prevent pregnancy (I am not sure about the statistical success rate associated with this form of birth control).

This explanation would be necessary if we learn the Gemora to be speaking about a moch (wad) after relations (Tosfos in the name of Rabbeinu Tam) and would be forbidden if not for pikuach nefesh. But, according to Tosfos who explains that these three women must use a moch, which implies that others also are allowed to because there is no prohibition for her to remove the shichvas zerah (semen) with a moch after engaging in relations, we don't need to come onto the permissibility of pikuach nefesh.

Reb Elchonon second guesses his proof, that perhaps there is a Biblical prohibition to put oneself into a situation where pikuach nefesh will have to override the prohibition and no proof can be brought from the Ba'al Hameor because he may hold that Shabbos specifically is "hutrah," (completely permitted) for pikuach nefesh (but other prohibitions which are only "dechuya," (overridden), there would be a Biblical prohibition to out rightly put oneself into a situation where they will have to rely on the license of pikuach nefesh.

At the end he cites a Magen Avrohom (O.C. 248) who questions whether one, who intentionally put themselves into a situation of pikuach nefesh should rely on it to override Shabbos. Reb Elchonon explains that by not relying on this permissibility, it comes out retroactively that he did not do a prohibition by placing himself in that situation. Reb Moshe has a teshuva where he adamantly disagrees and says that one must use the permissibility of pikuach nefesh to override Shabbos and save their life.

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Daf Yomi - Yevamos 11 - When The Maps of Countries Are Being Redrawn -- Hold Your Breath! - Scriptural verses do not leave their simple interpretation

Rabbi Frand on Parshas Ha'azinu

Scriptural verses do not leave their simple interpretation

When The Maps of Countries Are Being Redrawn -- Hold Your Breath!

The Torah states "Remember the days of old, understand the years of generation and generation. Ask your father and he will relate it to you, your elders and they will tell you." [Devorim 32:7]. Rash"i does not explain this pasuk [verse] according to the simple reading. Rather, Rash"i explains the pasuk as a warning: "Look at what happened to other people who came before you, when they angered Me." "Understand the years of generation _after_ generation" refers to the era of Enosh upon whom HaShem [G-d] poured forth the waters of the Ocean and to the era of the (people of the) Flood, whom HaShem washed away.

The next pasuk continues, "When the Supreme One distributed to nations their portions, when He separated the children of man, He set the borders of nations according to the number of the Children of Israel." [32:8]. Rash"i similarly interprets this pasuk: "when He separated the children of man" refers to the Dor Haflaga [Generation of the Dispersion]. This is what happens to those who anger HaShem.

However, we have a long-standing tradition that "Scriptural verses [pasukim] do not leave their simple interpretation" [Shabbos 63a; Yevamos 11b; 24a]. Rash"i himself says in a number of places that even though at times he is providing a Midrashic interpretation, the simple interpretation of the pasuk remains. The simple interpretation of these pasukim is an admonition to us to understand history and learn its lessons.

The traditional Jewish belief is that HaShem is not only the Creator of Heaven and Earth, but that He is the G-d of history. The historical events that we witness are the means by which HaShem is continuously directing His world. Simply stated, these pasukim are teaching us that when HaShem establishes the boundaries of the world, it is ultimately because of the Children of Israel. The different wars and conflicts that take place in the world and the different border changes that occur -- according to the simple reading of our pasukim -- all occur because of their ultimate impact on the Jewish nation.

There is a quote from the writings of Rav Elchanon Wasserman (who himself was killed by the Nazis at the beginning of World War II): The Torah gave us a great key to understand the hinge upon which all historical events revolve -- Devorim 32:8 (the previously quoted pasuk). HaShem sets the borders of nations and causes nations to inherit for the sake of the Jews. History revolves around the Jews. "For Hashem's share is His people; Yaakov is the portion of His possession" [32:9].

Rav Elchanon continued (regarding the Peace Treaty ending World War I), "when the map of Europe was drawn up in Versailles, the borders were already set in Heaven". Sometimes it takes us years, decades, or centuries to put the pieces together. Sometimes, in the interval, the activities seem to have nothing to do with the Jewish people. But the great lesson of history that we are taught in the opening pasukim of this week's parsha is that when HaShem sets up the borders of nations, it is for the sake of the Children of Israel.

I recently read (1993) that the people in MacMillan and Company -- the mapmakers -- are having a very hard time these days. We think that we have hard jobs! -- Imagine the job of mapmakers! -- It has been a very difficult couple of years for them. They had just finished their latest edition of the Atlas, in which they printed East Germany and West Germany. Bonn and Berlin were the respective capitals. All of a sudden, they had to reprint the map. OK, done. Now they think that now they are set. Then, all of a sudden, Yugoslavia divides -- Serbia, Croatia, we can not even pronounce all these names! When we are talking maps or when we discuss borders -- ultimately we are talking Klal Yisroel.

One does not have to be a politically astute individual to realize the momentousness of the breakup of the Soviet Union. The mapmakers do not know from day to day whether they should draw 15 republics or 12 republics. We ask ourselves what difference does it make if Azerbaijan decides to become independent or not. What is the meaning of all these changes?

This is the lesson of history that we should never forget. These events -- the placement of national boundaries -- have an impact on Klal Yisroel.

At the beginning of World War I, the Ottoman Empire chose the wrong side and allied themselves with the Germans. At that time, one would have had to be exceedingly insightful to have realized that this decision would have a major impact on Jewish history in the twentieth century. Our tendency would have been to think, "Who cares? What's the difference?" But that single event -- coupled with the fact that there was this little country called "Palestine" under the rule of the Ottoman Turks -- had major ramifications.

When Germany (and the Ottoman Empire) eventually lost World War I; their empires were disassembled. Part of the price that the Ottoman Empire paid for "picking the wrong horse" was that they lost their empire. Their little protectorate called "Palestine" became the British Mandate of Palestine. Not long after that there was a proclamation called the Balfour Declaration. Who would have thought that the Ottoman Turk's poor decision would lead toward the Jews attaining an independent homeland in the Land of Israel?

When we see maps changing -- we need to hold our breaths. This has to do with us. Somehow or another, we will be in the center of this. Sometimes it is for our benefit. Sometimes, G-d forbid, it is to our detriment. But we are always on center stage because "Yaakov chevel nachalos" [Jacob is the portion of His possession]. We are the protectorate of the Master of the Universe.

Rabbi Frand @ Torah.org

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