Gezeirah shavah and Rhymes

Gezeirah Shavah
Rava praises Rebbe for his connection of olah v’yored with the prohibition on an impure person eating kodesh, by a gezeirah shavah – a common phrase, since behemah temai’ah – non kosher animal is used in both sections. Tosfos Harosh (7a Doleh) asks why this is so praiseworthy, as one can only use such the textual device of gezeirah shavah if he learned it from his teacher. Therefore, Rebbe must have learned this from his teacher, and showed no innovation. Tosfos Harosh answers that all that one learns from his teacher is the common phrase of the gezeirah shavah, but it is up to the student to know which phrases to use, and what to learn. It is Rebbi’s application of the gezeirah shavah which Rava praised.

Rhymes Purer Than Gold

By: Meoros HaDaf HaYomi

The Chasam Sofer revered his mentor – “the great eagle,” Rabbi Nasan Adler zt”l. We see his admiration in a poem he composed in his honor, whose beginning copies the style of our sugya, in which Rava praises Rebbe. The interesting rhymes are written in a style now unknown.
He draws water from deep wells
From him they built eternal ruins; he establishes the institutions of each generation.
His words raise those who falter and are sweeter than honey and mead.
The master’s mouth emits flashes of fire, desirable more than refined gold.
The great Kohen – we shall seek Torah, judgment and rulings from him.
He is the teacher who quenches the thirst of the parched, like flowing water-brooks.
The light of Israel, the strong hammer, cast solid as lustrous bronze,
Nasan the Kohen, a tzadik above chasidim and tzadikim.
He is the great eagle who hovers over his nestlings, his veteran students.
Wings of a dove coated in silver and its wings are like brilliant green-gold
And I am among the young, not from the seasoned,
But from the fragile kids (Responsa Chasam Sofer, Y.D. 167).

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Redeeming with a Check

The Gemora cites a braisa: Rebbe says that a person can use anything to redeem his firstborn son from the Kohen, aside from documents. The Rabbis say: A person can use anything besides for slaves, documents, and land.

The Chasam Sofer in a teshuva (Y”D 134) discusses if redemption would be valid when the father pays the Kohen by check. Is a check regarded as money because it is accepted as cash all over or do we say that it is regarded as a document since there is no inherent value in the paper itself?

He concludes that a check can be regarded as money for some things, but as a document for others. If it is regarding a matter which is between people, then a check would be considered money, since it is commonly accepted. However, regarding redemption of a firstborn, which is between man and Hashem, a check would be regarded as a document and the redemption would not be valid. He explains: The father is actually redeeming his firstborn son from Hashem, but He gave over the monetary rights to the five selaim to the Kohen. Since it is the Torah that set the requirement for the money, the redemption will only be valid if the father gives to the Kohen something that is itself valued at five selaim.

The Chazon Ish (Y”D 72:10) disagrees and maintains that a check would be regarded as money and the redemption would be valid.

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Eretz Yisroel - Highest Point

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Eretz Yisroel and the Beis HaMikdash is Higher than all other Places

Does High and Low Apply to Spherical Objects?

In our sugya the Gemora cites a verse in Yirmyahu (23:7) “…Who brought Bnei Yisrael up from the land of Egypt” and a verse in Devarim (17:8) “…then you shall arise and go up unto the place which the Lord thy G-d shall choose” to demonstrate that Eretz Yisrael is higher than any other land, and that the Beis HaMikdash is the highest point in Eretz Yisrael. The wording of the Gemora seems to indicate that Eretz Yisrael is physically higher. In fact, the Yam Shel Shlomo (Kiddushin Chap. 4, 1) goes so far as to say that if someone standing in Eretz Yisrael says, “I vow to go up to Chutz La’aretz,” the vow is considered to be made in vain and is invalid. Leaving Yerushalayim or Eretz Yisrael is always referred to as “going down.”

Many commentators maintain that our Gemora should not be interpreted literally. The Chasam Sofer (Responsa, Part II, Y.D. §234) stresses this point, writing, “…in fact, those who are somewhat familiar with the world map can see otherwise…actually the world is round, and high and low do not apply to spherical objects; from any given point one sees the skies high overhead and low on the horizon, forming a dome. Someone who approaches from a point on the horizon appears as if he emerged from a deep pit, and high and low do not apply.”

Furthermore the Maharal of Prague (in his book on Talmudic Aggados and in Tiferes Yosef, Chagiga 3b, s.v. Eizehu) writes that the Gemora is referring to the spiritual loftiness of Eretz Yisrael, and not to its physical height.

It is interesting to note that the Chasam Sofer (ibid) writes that Eretz Yisrael is said to be “higher than all other lands” because Creation began from the even shesiya [foundation stone] located on Har HaBayis (see Rashi, Sanhedrin 26b, s.v. veshesiya). Thus all eyes are raised to Eretz Yisrael and Har HaBayis because mankind lifts its gaze to the spot where the ground beneath its feet was first created.

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Matchmaker, L'chaim and Bas-sheva

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The Gemora discusses the process of matching a man and woman together for marriage, and states that for the first match, a heavenly voice proclaims who will marry whom, while for a second match, the process is as difficult as the splitting of Yam Suf. Rav says that the heavenly voice announces forty days before the forming of a fetus, “The daughter of So-and-so will marry So-and-so.” The Ran explains that this at the point of conception, since an embryo is halachically considered a fetus at forty days from conception.

The Maharsha (Sotah 2b) says that the voice comes out at the time of the husband’s conception, which is why the wife is referred to only as the daughter of someone, and not by name.

Tosfos (22a Arbaim) states that through prayer, one can modify the match that he gets, even in his first match.

The Chasam Sofer (7:34) writes in the name of the Arizal that the “first match” referred to is not necessarily a first marriage. When a soul is created and placed in the world, it has a matching half in someone of the opposite gender. This match is the first match. As the person grows up, they develop, sometimes positively, and sometimes negatively. When they marry, their “first match” may not still be appropriate for who they have become, necessitating a “second match,” based on their actions since birth, and this match is the more difficult one.

Lechaim?
The Gemora brought a braisa, in which Rebbe said that although a Kohen who does not know his rotation week should never drink wine, he is allowed to by dint of his problem. Rashi explains that Rebbe is not concerned with the imminent rebuilding of the Bais Hamikdash. Therefore, Rebbe is saying that destruction of the Bais Hamikdash, which led to the problem of not knowing the rotation, also is the solution which allows them to drink nowadays.

Tosfos Harosh says that Rebbe is saying that a decree that a Kohen can never drink wine is too onerous. Therefore, the problem of not knowing which rotation he is in, also leads to the untenable situation, which therefore allows them to drink wine.

The Rambam (Bias Mikdash 1:7) rules that a Kohen who does know which rotation he is in may not drink wine during his week, even nowadays. This seems to follow the Tosfos Harosh, who says that the license to drink is only for someone who would otherwise never drink.

The Raavad rules that all Kohanim may drink nowadays, which seems to follow Rashi, who says that the license to drink is due to the absence of a Bais Hamikdash, which applies to all Kohanim.

The Shulchan Aruch (OH 128:38) rules that a Kohen who drank a revi’is of wine may not bless Birchas Kohanim, since it is a form of service. The Gemora (Taanis 26b) states that we therefore do not say Birchas Kohanim at Minchah, since it is after a meal, at which the Kohen may have ingested a revi’is of wine. This concern also is the rationale behind the custom in some congregations to shift the Birkas Kohanim on Simchas Torah to Shacharis, lest the Kohanim drink a revi’is of wine after the reading of the Torah, before Musaf.

Bas Sheva or BasSheva?
By: Meoros HaDaf HaYomi

HaGaon Rabbi Chaim of Volozhin wondered if one should write the name Bas-Sheva in a get as one or two words and he asked his mentor, the Vilna Gaon. The gaon told him that “I have supported my foundations on 13 words” (from the selichos prayers). Rabbi Chaim then remembered our Gemora in which Rashi remarks that the above verse contains thirteen words (s.v. Kinechah). Counting the words, though, he found fourteen! The only solution, then, is that Bas-Sheva should be written and counted as one word (Kol Eliyahu in the name of Emunah Vehashgachah).

HALACHAH ON THE DAF

Mentally Preparing for Shemoneh Esreh
The Gemora mentions in passing that according to one explanation, the verse of “Shivisi Hashem l’negdi samid” teaches us that when one davens, he should visualize that the Divine Presence is in front of him. The Shulchan Aruch (Orach Chaim 98) writes an entire siman on the topic of realizing that one is talking to Hashem and how we should approach the mighty concept of tefillah.

First of all when davening, we must concentrate on the explanation of the words that our mouths are saying. Mishnah Berurah stresses that one must understand the simple meaning, and not delve into the esoteric depths of tefillah, and furthermore, all the mental preparations that are required, should be done before one starts Shemoneh Esreh, for during davening, one must solely focus on the simple translation.

One must expel all of his thoughts until his mind is clear, and he should meditate as to what amount of meticulous preparation he would put in when speaking before an earthly king, how much more so when speaking to Hashem. If a thought does enter his mind during davening, he should wait quietly until the thought goes away. The Mishnah Berurah cites an interesting She’lah who states that as a segulah not to be interrupted with other thoughts during tefillah, before davening. one should say the pasuk “Lev bara li Elokim v’ruach nachon chadash b’kirbi” three times, and each time he recites it he should pass his right hand over his forehead. If thoughts enter during davening, he should do as the above; just instead of reciting the verse out loud, he should think it in his mind.

The Rema adds that before davening one should ponder the greatness of Hashem and conversely the smallness of man.

One must daven as a poor person pleading for mercy, slowly enunciating each word. One must make sure not to daven in a way that it seems that he can’t wait to finish. Mishnah Berurah points out that one must be exceedingly careful in this regard, since there are poskim which hold that if one davened in such a manner he must daven again. Although we don’t rule in accord with these poskim, it shows the severity of not davening properly.

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The Witnesses have an Interest in the Case

By: Meoros HaDaf HaYomi

The Reinterment of HaGaon Rav Mordechai Benet zt”l

The Gemora, here and often elsewhere, disqualifies anyone suspected of having an interest in a case from serving as a witness or dayan.

The Chasam Sofer zt”l was known for his sensitivity to this issue, which he expressed at the burial of HaGaon Rav Mordechai Benet. The Gaon, whom the Chasam Sofer called the “teacher of all Israel” (Responsa, VI, Likutim, 37), passed away in 5589 far from his town of Nikolsburg, Moravia – now in the Czech Republic – and was buried in Lichtenstadt. His family and members of his community claimed he had instructed them to bury him in Nikolsburg or, at least, Prague and asked the Chasam Sofer’s permission to move the body. The Chasam Sofer, though, replied that all Nikolsburg were unfit to be witness, as they had an interest in the affair, wanting to pray at his grave especially as he had assured them that whenever they needed anything they should pray at his grave. Still, he allowed the reinterment since they claimed he had asked to be buried alternatively in Prague and this admission showed they had no personal interest (Responsa, ibid, and see Responsa Shoel Umeshiv, I, 231).

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Eliyahu's Locker Room

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The Gemora (Sukkah 5a) states that the presence of Hashem (as manifested in the higher worlds) never descended to within ten tefachim of the physical world. Similarly, Moshe and Eliyahu could not ascend to within ten tefachim of the upper worlds.

Discussing that Gemora, the Chasam Sofer explains that this was only as long as Eliyahu was encumbered by his physical body. However, once his soul was freed from its body, he assumed the status of an angel, and was not bound by any of these limitations.

The Chasam Sofer proceeds to say that when Mashiach comes, Eliyahu will once again don his body and live as a human amongst the other great people of that great generation. He will be allowed to rule on any halachic issues (a privilege reserved for mankind) since at that time he will have reassumed the existence of a human being. Meanwhile, however, he has the status of an angel, and therefore he is not bound by any of the limitations imposed upon men. This applies for halachah as well; Eliyahu may traverse the globe on Shabbos to go to a bris milah, even though this involves traveling beyond the permitted distance, since as an angel he is not bound by halachah.

Our Gemora relates an incident where Rabbah bar Avuha encountered Eliyahu in a graveyard. Rabbah asked him how he was permitted to be there despite his being a Kohen. The Chasam Sofer explains that Eliyahu must have been in his body at the time, because otherwise, he would have the status of an angel, and Rabbah would have known that as such, these halachos do not apply to him.

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Bar Metzra

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Our sugya treats the definitions and halachos of a bar metzra, an adjacent neighbor whose field borders yours. If you offer land for sale, you must prefer selling it to a bar metzra if he wants it. If two or more adjacent neighbors simultaneously compete for the premises, you must sell a same-sized portion to each (see bottom of 108b). If an owner ignores a bar metzra and sells his property to one who is not an adjacent neighbor, the bar metzra may even evict the new owner, compensating him for the price at which he bought the property, and assume its possession. The following case, judged by the Chasam Sofer, allows us to understand the basic source of this halachah.

Son-in-law vs. Neighbor for Liquidated Apartment

A rich man became bankrupt and the beis din ordered him to relinquish his home to the creditors. Fortunately, one creditor was his beloved son-in-law and the house was transferred to his possession. The latter allowed his father-in-law to continue living there for free, but just as the older man started to feel more at ease, his adjacent neighbor complained to the beis din that he had been mistreated. After all, he was a bar metzra, and the beis din, as receivers of the property, should have offered to sell it to him first. However, the Chasam Sofer (Responsa, C.M. 11) refuted his claim, stressing that Chazal learnt the halachah of adjacent neighbors from the commandment in Devarim 6:18: do what is upright and good. The owner of a field next to one offered for sale profits from buying it by enlarging his property and should be preferred but not if he thus harms the seller. If, in this case, the beis din sells the home to the neighbor, he would evict the owner, who would become homeless. The house should remain the son-in-laws’s for the previous owner’s sake, who is being allowed to live there, as the neighbor is also commanded to “do what is upright and good”! (See Chasam Sofer, ibid, who cites more reasons as to why the principle of adjacent neighbors does not apply to such cases).

Buying Seats in a Shul

Buying a seat in a synagogue can become an ordeal to make people swallow their pride. The poskim mention several interesting cases and a long-discussed difference of opinions as to whether the concept of adjacent neighbors pertains to such seats. Should a person occupying a seat next to one being sold be preferred to buy it? Some Rishonim (see Beis Yosef C.M. 175:85) say the rule of bar metzra applies.

Raavad writes that the idea is inconceivable regarding synagogue seats as the original principle applies if, by buying adjacent property, a neighbor expands his use to the added area. An apartment owner, for example, may expand his premises to include a newly bought apartment next-door. A congregant, though, doesn’t need and even cannot sit on two places and therefore does not have to be preferred (see Beis Yosef, ibid, who uses this explanation and Sema’, ibid, S.K. 99). However, all agree that if a bench is too short for a certain number of congregants, they may buy a place next to them to expand their use and ensure their comfort.

Meoros HaDaf Hayomi

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The Famous Taz

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Estate Money and Interest

The Gemora allowed an administrator of an estate to invest the orphan’s money in an investment with favorable terms for them, although this is generally Rabbinically prohibited.

The Shulchan Aruch (YD 160:18), based on the Rambam and Rosh, applies this license to all Rabbinically prohibited interest, and extends this to money of charity, money donated to Torah scholars, and money donated for use in a synagogue.

What did the Torah Permit?

The Gemora quotes a statement of Rav Huna that prohibits charging interest from a non Jew. The Gemora debates why this is prohibited, and how to reconcile this statement with the verse and Mishna that seem to permit such a loan.

Tosfos (70b Tashich) asks why the Gemora was concerned with reconciling this Rabbinic law with the verse and Mishna, and answers that the Gemora assumed that the Sages would not prohibit something the Torah permitted.

The Taz states in numerous places that although the Sages have leeway to enact their own new prohibitions, they may not prohibit something explicitly permitted by the Torah.

The Taz in YD 117:1 applies this to the Rabbinic prohibition on commerce in forbidden foods. Since the Torah explicitly allows one to sell neveilah meat to a non Jew, the Rabbinic prohibition had to allow for such commerce when one chanced upon the forbidden food, so as to not fully prohibit an act the Torah explicitly allows.

The Taz in OC 588:5 discusses a question raised by earlier poskim. We find the Sages prohibited the performance of numerous mitzvos on Shabbos (e.g., Shofar, Lulav), due to a concern of one accidentally carrying to perform the mitzvah. Why did the Sages not apply this to bris milah, prohibiting a bris milah which falls on a Shabbos.

The Taz says that since the Torah explicitly said that one must perform a bris milah on the eighth day, even if it is a Shabbos, the Sages could not prohibit it.

The Chavos Yair 142 challenges this Taz from our Gemora, among others. Our Gemora is an instance where the Sages prohibited an action explicitly permitted by the Torah – i.e., charging a non Jew interest on a loan. Therefore, the Chavos Yair rejects the Taz’s thesis.

Later poskim dispute the Chavos Yair’s disproof. The Shla, quoted by the Chasam Sofer (YD 106), says that the Sages did not prohibit charging a non Jew interest, since that is indeed explicitly permitted by the Torah. Instead, the Sages prohibited a Jew from lending to a non Jew at all, and only thereby precluded the Jew from receiving interest from him.

The Chasam Sofer (YD 106, 109) says that Tosfos themselves (70b Tashich, 64b v’Lo) seem to support the Taz, and actually explain the Gemora based on his principle. According to Tosfos, when the Gemora challenged Rav Nachman from the verse, the Gemora was stating that since the Torah explicitly allowed a Jew to charge a non Jew interest, the Sages cannot prohibit it. The Chasam Sofer says that the reason the Sages were allowed to do so is due to the exclusions built in to their prohibitions (for livelihood, or for a Torah scholar). Just as the Sages allowed commerce in forbidden food when the Jew chanced upon it in order to avoid explicitly prohibiting an act allowed by the Torah, so too, the Sages allowed charging a non Jew interest in some cases, to avoid explicitly such a prohibition.

Rav Moshe Feinstein (Igros Moshe OC 1:134) says that the Gemora’s answer that we read the verse only as tashich – explicitly allowing a Jew only to pay interest, means that the Torah never did explicitly allow a Jew to charge interest, giving the Sages the leeway to prohibit it. See Rabbi Akiva Eiger YD 117 on the Taz for more details.

Tosfos (70b Tashich) says that nowadays we lend money to non Jews with interest. Tosfos advances three reasons for this behavior:
1. The economic situation and lack of other professions available to Jews makes the interest necessary for the creditor’s basic needs, in which case it is permitted.
2. Ravina’s answer understood that the prohibition was to limit our interactions with non Jews. Since we are forced into such interactions due to economic circumstances, there is no added interaction that will be prevented by refraining from charging interest.
3. The second version of Rav Huna’s statement does not prohibit interest from a non Jew at all, but only prioritized an interest free loan to a Jew above it.

The Shulchan Aruch (YD 159:1) rules that charging interest from a non Jew is prohibited by the Sages, unless the creditor needs the interest for his basic needs, or is a Torah scholar. However, the Shulchan Aruch says that it is permitted nowadays, based on the first two reasons of Tosfos (see Shach 2).

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Power of a Word

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The Gemora relates the following: Mar bar Ameimar said to Rav Ashi: My father does business this way. If the sellers would come to him and say that they did not make this anticipated profit, he would believe them (without imposing an oath upon them; in such a case, he would only receive half of the actual profit, and not the amount written in the document; this way, he would avoid any ribbis concern).

Rav Ashi said: This is fine because your father is alive (and he will waive the amount written in the document). However, if he would die and the orphans would have a document saying that the merchants owed them a certain amount of money, wouldn’t they have to pay? This statement (talking about the death of Ameimar) was like an “error proceeding from a ruler,” and Ameimar died.

The Gemora in Moed Katan (18a) records the following incident: The Sage Shmuel paid a condolence visit to his brother Pinchas, who had lost a child. He asked him why he allowed his fingernails to grow although it was permitted to cut them. The rebuttal of Pinchas, “If such a tragedy as mine had befallen you, would you also show such disregard for mourning?” is described by the Gemora as an example of “an error proceeding forth from the ruler” (Koheles 10:5). The result of this apparent slip of the tongue was that Shmuel himself soon became a mourner because “there is a covenant for the lips” — a spoken word has the power to effect fulfillment. As proof of this power Rabbi Yochanan cites the statement made by the Patriarch Avraham, on his way to offer his son Yitzchak as a sacrifice, to the two young men accompanying them. “Stay here,” he told them “and I and the lad will return to you” (Bereishet 22:5), and did indeed result in their both returning.

How can we derive from here that a person should be careful with his words; this brought about a positive result that Yitzchak was saved?

The Chasam Sofer answers that to Avraham, it was regarded as undesirable, since he was unable to fulfill the will of Hashem.

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Asmachta by har sinai

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It is written in Parshas Yisro [24, 9 – 11]: And Moshe and Aaron, Nadav and Avihu, and seventy of the elders of Israel ascended, and they perceived the G-d of Israel etc., and they perceived G-d, and they ate and drank.

Rashi cites the Medrash Tanchuma: They gazed and peered and because of this were doomed to die, but the Holy One, blessed be He, did not want to disturb the rejoicing of this moment of the giving of the Torah. So He waited to kill Nadav and Avihu until the day of the dedication of the Mishkan, and for the elders until the following incident: And the people were as if seeking complaints… and a fire of Hashem broke out against them and devoured at the edge (the leaders) of the camp.

We can ask: What happened by the sin of the complainers that precisely then, Hashem chose to destroy the elders?

The Chasam Sofer answers based upon our Gemora: Rav Pappa said: An asmachta is sometimes binding and sometimes not. If the lender found the borrower (on the date that the loan was due) drinking beer (at a tavern), it is binding (for he clearly does not care about the forfeiture of his field); if, however, he was trying to procure money, it is not binding.

Rav Acha from Difti asked Ravina: Perhaps he was drinking to dismiss his anxiety (that he could not pay the loan), or perhaps someone else had assured him of the money (to repay it)?

Similarly, it can be said regarding the Jewish people’s acceptance of the torah when they said, “we will do and we will listen.” Seemingly, this should be regarded as an asmachta, and therefore not binding – they were coerced into saying that by the fact that the mountain was placed on top of them.

Accordingly, we can say as follows: when the elders ate and drank, this was a demonstration that they were completely at ease with their decision; they were displaying happiness and joy with the acceptance of the Torah, and that it wasn’t an asmachta at all. So, on the contrary – they were acting properly, and not deserving of a punishment at all! However, by the sin of the complainers, it is written: They travelled from the mountain of Hashem. Rashi explains that they ran away like a child runs when he is leaving school. They were fleeing in order not to receive any more laws. This would then indicate that when they were eating and drinking by Mount Sinai, it was not a sign of happiness, but rather, they were dispelling their anxiety. This was a cause for their demise, and that is why Hashem waited until the time that they demonstrated what their true intentions were.

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Proximity and Majority

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The Gemora cites a braisa: If someone found something without an identifying mark next to something with an identifying mark, he is required to announce it (everything).









The Ketzos Hachoshen asks: Isn’t there an established principle (Bava Basra 23b) that when a conflict arises between a “majority” and a “proximity,” we follow the majority!? If so, why do we assume that the produce originated from the barrel which is nearby, we should say that it fell from a passerby, for that is the majority!?



He answers according to the Ramban, who says that that where something is found in its actual place, that principle does not apply. Since the produce is found within four amos of the utensil, it is regarded as if it is resting in its place – we therefore follow the proximity.



The Chasam Sofer answers that besides the “proximity,” there is a definite claim from the claimant. Accordingly, we do not follow the majority in such cases.



The Chazon Ish answers that when the “proximity” is also a “probability,” we do not follow the majority. Since it is most probable that the produce originated from this container, we do not assume that it fell from a passerby.

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Tov in the Luchos

By: Rabbi Avi Lebovitz

Rabbi Chanina ben Agil asked Rabbi Chiya bar Abba: Why do the first Commandments not have the word “good” in it, and the second Commandments do have the word “good” in it?

He replied: Before asking me why it says “good,” ask me if it says “good,” as I don’t know whether it says this or not. Go ask Rabbi Tanchum bar Chanilai, who used to learn from Rabbi Yehoshua ben Levi, who was an expert in Aggadic teachings.

When he went to Rabbi Tanchum, Rabbi Tanchum said: I did not hear anything from Rabbi Yehoshua ben Levi about this matter. However, Shmuel bar Nachum, the uncle of Rabbi Acha bar Rabbi Chanina, and some say the maternal grandfather of Rabbi Acha bar Rabbi Chanina, said: Being that the first ones were going to be broken (by Moshe, they did not contain the word “good”).

The Gemora asks: Why is this a reason that they should not contain the word “good”?

Rav Ashi said: Heaven forbid, this would mean that goodness would stop for the Jewish people.

Rashi explains that the Gemora is making reference to the term “tov” in the mitzvah of honoring one’s father and mother.

The Maharatz Chayus is bothered by the very difficult question: How is it that the Tannaim were not familiar with the text of the Ten Commandments, until it was confirmed by Rabbi Tanchum? Although Tosfos in Bava Basra writes that there were some who were not fluent in the Scriptural verses, it seems strange to say that they didn't know the Aseres Hadibros!?

The Maharatz Chayus suggests that the discussion was whether the Aseres Hadibros that are recorded in Parshas Yisro was the text on the first set of luchos, and the Aseres Hadibros in V’eshchanan are the second set of luchos. Rabbi Tanchum had a tradition that it was in fact the case, to which the Gemora finally explains that it now makes sense that the luchos which were to be broken didn't contain the term “tov.”

The Torah Temima (Devorim 5:16) offers another approach. The Gemora is making reference to a Medrash where Hashem says to Moshe that He is going to give a second set of luchos, to which Moshe reacts with joy by saying “Tov li toras pichah me’alfei zahav v’chasef” – Torah is more precious to me that thousands of gold and silver.

Why did he only express this happiness by the second luchos, and not the first? On that the Gemora explains that since they would be broken, it would be inappropriate to say that about the first set of luchos.

However, based on the conventional understanding of the Gemora, it certainly seems to indicate that the Aseres Hadibros of Yisro were the first luchos, and V’eschanan the second. Based on this, we can make another observation. In the second luchos, by Shabbos and honoring one’s father and mother, it says “like Hashem your God commanded you,” which Rashi interprets as a reference back to Marah where the water was bitter. Why is this reference specifically in the second luchos and not the first?

The Chasam Sofer in Parshas Beshalach explains that Hashem taught us in Marah that he is our personal doctor – “ki ani Hashem rof’echah.” Unlike a physician who just heals the sick, Hashem is our "family doctor" who is just as interested in providing us with preventive medicine as He is with remedies for illness. In the second luchos, Hashem wanted to remind Klal Yisroel that committing transgressions (such as the golden calf) forces Him to bring upon us illnesses, and then He demonstrates to us that He has the power to heal. He much prefers avoiding illness in the first place by our commitment to His Torah.

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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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Halachah l'Moshe mi'Sinai

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The Rambam (Hilchos Mamrim 1:3) writes: There cannot be an argument regarding a halachah learned from a Halachah l’Moshe mi’Sinai. The obvious question is from our Gemora (Bava Kamma 17 - 18) where we have the disagreement between the Chachamim and Sumchos regarding the payment for the case of “pebbles.” The Chachamim maintain that the Halachah l’Moshe mi’Sinai teaches us that half damages are collected, whereas Sumchos disagrees.

The Maharitz Chayus quotes this question from the Chavos Yair (192), and suggests based on the Rambam in his explanation to a Mishna at the end of Eduyos that we have a tradition that Eliyahu Hanavi will do good for Klal Yisroel at the end of time, but there is a disagreement on the specifics. Here too, all agree that pebbles is a Halachah l’Moshe mi’Sinai that it is included in damages that one is responsible for, but they argue as to the extent of the liability.

The Gemora cites Rav Ashi inquiry: According to Sumchos, do we treat the damage caused by the force of the animal’s force the same way as the force of the animal itself? There are several approaches to understand this.

The Shitah Mekubetzes writes that since Sumchos does not agree that pebbles are learned from a Halachah l’Moshe mi’Sinai, the reason he holds that one is liable in full is purely based upon logic. Accordingly, there can be a distinction between damage caused by the animal’s force and damage caused by the force of the animal’s force.

The Rosh understands the inquiry as follows: Sumchos was uncertain if there was a Halachah l’Moshe mi’Sinai by pebbles at all. If there was one, perhaps it was coming to teach us that one is not liable to pay full damages by a case where the damage was caused by the force of the animal’s force; rather, he is only obligated to pay half.

According to both these approaches, it is evident that they did not learn like the Maharatz Chiyus.

Reb Avi Lebovitz quotes a Chasam Sofer (Beitzah 5a - pg. 20), who offers another approach. We certainly find many cases where there is a dispute regarding a Halachah l’Moshe mi’Sinai. The Rambam doesn’t mean to say that an argument cannot develop on a tradition; rather, he means to say that when there was a disagreement about a tradition and the Sages of the generation agree to one approach and reject the other – they essentially are deciding that the tradition of the one they accept is correct and the other is not. At that point, no later generation can restore the argument and rely on the tradition of the individual.

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Uncertainty regarding Liability by Damages

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The Gemora (Bava Kamma 3a) asks: Why didn’t the Torah just write v’shilach, which connotes both shein and regel (which the Gemora proceeds to prove), and u’vier would not be necessary?

The Gemora answers: If the Torah would only write v’shilach, we would only have learned that one is liable for one of those damages; either regel because its damage is usual, or shein because it has physical pleasure when damaging (but we would not have learned that there is liability for both types).

The Gemora asks: But they are both equal, so let us derive both types of damages from one verse, for which one of them would be excluded?

The Gemora answers: If shein and regel would be derived from one verse, we might have said that one is liable only if the owner sent the animal out; however, one would not be liable if the animal went out by itself and damaged. The Torah therefore writes u’vier as well.

The Rashba asks on the Gemora’s question: Why would we learn out both damages from one verse based on the fact that we do not know which one of them to exclude? On the contrary! Since we are trying to extract money from the damager, why don’t we apply the principle that the one who is attempting to extract money is the one who is obligated to bring the proof?

A possible answer on this question is that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, we can understand why both damages will be included in one verse since we do not know which one to exclude. Why didn’t the Rashba answer like this?

The Chasam Sofer adds that this is even more problematic, for the Rashba himself (2b) uses this principle to answer a different question. The Gemora had stated: One might think that when the Torah differentiates between a tam (an ox that did not yet gore three times; the owner only pays for half the damage) and a mu’ad (an ox that gored already at least three times; the owner pays the full amount of the damage), it is only when the horn is disconnected from the animal (in a case where the animal took its uprooted horn in its mouth and gored; as the case of Tzidkiyah was of an unattached set of horns). However, when an animal gores with its horns attached to its head, it should always pay full damages. This is why the braisa quotes the additional verse from the Torah.

The Rashba there asked: On the contrary! Let us say that when an animal gores with its horns attached to its head, it should always pay half damages!?

He answered that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, when faced with the option of always paying full damages or paying half, the Gemora chooses the option of paying in full.

It would therefore seem that the Rashba is contradicting himself! How do we treat damages? Do we automatically rule stringently because it is like a prohibition, or do we rule leniently, for we are attempting to extract money away from the one who possesses the money, and for that, proof is needed?

The Har Tzvi suggests the following answer: The Levush (C”M 378) writes that not only does the Torah obligate the damager to compensate the person who was damaged, but there also is a prohibition to damage someone else’s property, in the same manner that it is forbidden to steal. If someone does not guard his possessions against inflicting damage on someone else’s property, he has violated a Biblical prohibition.

Accordingly, the Rashba can be explained as follows: The Gemora above was discussing a case where the damager is certainly obligated to pay. The animal inflicted damage with a disconnected horn in its mouth. The Gemora’s only question was with respect to the amount of the compensation. Should he always (whether it’s a tam or a mu’ad) pay full damages, or should he only pay half. In such a case, we would rule stringently, for the owner has indeed transgressed the prohibition of allowing his animal to cause damage. He now has to “fix” his sin by compensating the owner for his loss. This would be similar to a case where one said to his fellow, “I know that I owed you money, but I do not know if I paid.” He would be obligated to pay. However, in our case, where the Gemora is not certain if one should be liable at all for shein or regel; we must rule leniently. For it is quite possible that the Torah did not mandate that there should be any obligation to guard one’s property against causing such a damage. This is why the Rashba asks that if we are uncertain if there is any liability at all, we should rule leniently, and apply the principle of the one who is attempting to extract money is the one who is obligated to bring the proof. Accordingly, there is no contradiction at all.

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Eretz Yisroel; Highest Place

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Does High and Low Apply to Spherical Objects?

(From Meoros Daf HaYomi)

In our sugya (Kiddushin 69) the Gemara cites a verse in Yirmyahu (23:7) “…Who brought Bnei Yisrael up from the land of Egypt” and a verse in Devarim (17:8) “…then you shall arise and go up unto the place which the Lord thy G-d shall choose” to demonstrate that Eretz Yisrael is higher than any other land, and that the Beis HaMikdash is the highest point in Eretz Yisrael. The wording of the Gemara seems to indicate that Eretz Yisrael is physically higher. In fact, the Yam Shel Shlomo (on our sugya, Kiddushin Chap. 4, 1) goes so far as to say that if someone standing in Eretz Yisrael says, “I vow to go up to Chutz La’aretz,” the vow is considered to be made in vain and is invalid. Leaving Yerushalayim or Eretz Yisrael is always referred to as “going down.”

Many commentators maintain that our Gemara should not be interpreted literally. The Chasam Sofer (Responsa, Part II, Y.D. §234) stresses this point, writing, “…in fact, those who are somewhat familiar with the world map can see otherwise…actually the world is round, and high and low do not apply to spherical objects; from any given point one sees the skies high overhead and low on the horizon, forming a dome. Someone who approaches from a point on the horizon appears as if he emerged from a deep pit, and high and low do not apply.”

Furthermore the Maharal of Prague (in his book on Talmudic Aggados and in Tiferes Yosef, Chagiga 3b, s.v. Eizehu) writes that the Gemara is referring to the spiritual loftiness of Eretz Yisrael, and not to its physical height.

It is interesting to note that the Chasam Sofer (ibid) writes that Eretz Yisrael is said to be “higher than all other lands” because Creation began from the even shesiya [foundation stone] located on Har HaBayis (see Rashi, Sanhedrin 26b, s.v. veshesiya). Thus all eyes are raised to Eretz Yisrael and Har HaBayis because mankind lifts its gaze to the spot where the ground beneath its feet was first created.

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Shavyah A'nafshei - Kiddushin 65

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

Rashi explains the man is forbidden to marry her relatives because of the principle of “shavya anafshei chaticha d’issura” i.e. she has made for herself a forbidden piece; she is compelled to abide by her declaration.

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

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

The Shaar Hamelech quotes the Mahari Assad that the reason why one can render the object forbidden with the principle of “shavya a’nafshei” is not because he is believed in respect to himself; rather, it is because it is regarded as an oath. The witness is taking a vow forbidding himself from this particular object.

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

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

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

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Kiddushin 62 - Two Perutos

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The Mishna states: One cannot take off terumah from what is detached from the ground in order to exempt things still attached to the ground. If he does, it is invalid.

Rav Assi asked Rabbi Yochanan: If someone says that the fruit of this row that is detached should be terumah for the fruit of this row that is still attached or visa versa, but he adds that this should take effect when the fruit becomes detached, what is the law? [Perhaps the attached fruit should be regarded as something that has not yet come into the world (for it is not yet subject to the halachos of terumah)?]

Rabbi Yochanan answered: Anything that is in his hands to do is not considered as if it is lacking an action (and it is therefore valid). [If one has the ability to change its status, the transaction can be valid, even though it presently is still not in the world.]

The Gemora asks a question from a statement of Rabbi Oshaya. Rabbi Oshaya says: If someone gives a perutah to his wife and says that this is her kiddushin for after he divorces her, it is invalid. However, according to Rabbi Yochanan this should be valid!?

The Gemora answers: Although he can indeed divorce her, he cannot make her accept kiddushin afterwards (this is not “in his hands”).

We should therefore be able to answer Rabbi Oshaya’s question. He asked: If someone gives two perutos to a woman, and says, “With the first one, I am betrothing you today, and with the second one, I am betrothing you after I divorce you,” what is the law? According to the above statement (he cannot make her accept kiddushin), the kiddushin should be invalid!?

The Gemora answers: Being that she is already accepting kiddushin from him now, it is possible that the kiddushin after future divorce is also valid.

What would be the halacha if one purchased a field with one perutah and stipulated that he is buying it back after he gives it back to the seller?

The Rashba proves from out Gemora that it will be ineffective because the Gemora needs to say a case where there were two perutos.

The Chasam Sofer makes a distinction: Our Gemora needs to discuss a case with two perutos, for kiddushin cannot take effect without a perutah. However, regarding a field, there are other ways to acquire a field, and it would not be necessary to have two perutos.

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Nullified Metzora Bird

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The Gemora (Kiddushin 57) had stated: One verse comes to include the metzora bird that is set free in the category of permitted birds. Another verse comes to include the slaughtered metzora bird in the category of forbidden birds.

The Gemora asks: Perhaps it is exactly the opposite!?

Rava answers: It is not logical to assume that the Torah said that the bird should be sent away in a matter where it will create a stumbling block (for if this would be the bird that is forbidden, someone might mistakenly find this bird and eat it, for there is no way to recognize that this was a metzora bird).

The Acharonim ask: What stumbling block would there be? The metzora bird will become nullified because of the majority of birds in the world that are permitted!?

The Shaar Hamelech answers: We are concerned that someone will find the metzora bird before it intermingles with other birds.

The Peleisi answers: The halachah is that if there is one person in the world that recognizes the forbidden item, it is not nullified, even for the people who do not recognize it. Accordingly, we are concerned that a person will be standing on the top of a mountain and will see where the metzora bird went.

Reb Shimon Shkop answers that the principle of nullification does not apply here, for all the birds in the world are not intermingled with each other in one location; rather, they are all scattered about. And even though it will be permitted, for we follow the majority and say that this one came from the permitted birds, the metzora bird does not lose its prohibited status and will therefore still be considered a stumbling block.

The Chasam Sofer answers that we are not concerned with the finder, for he will not violate any prohibition. We are concerned that the sender will violate the prohibition of outrightly nullifying a prohibition.

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Yaakov's Altar (this week's Parshah)

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It is written [Breishis 28:18]: And Yaakov arose early in the morning, and he took the stone that he had placed at his head, and he set it up as a monument, and he poured oil on top of it.

The Chasam sofer asks: The Gemora in Zevachim (116a) states: Anything used by a common person becomes forbidden to be used for the High! Once Yaakov used these stones for his head, how could he have used them afterwards to build an Altar?

He answers: the Yalkut (119) states that these stones were the stones from Noach’s altar, and it was also the stones used for Akeidas Yitzchak. The Zayis Raanaan asks: How could Yaakov use these stones to lie upon; he should be guilty of me’ilah in hekdesh!? Firstly, he answers that he did not actually use the stones, but rather, he placed them around him as a protection. Accordingly, we can use this to answer the original question. Yaakov could use these stones to build a monument, for he never actually used them for his personal needs.

The Zayis Raanaan offers an alternative answer to his question. Yaakov used these stones to lie upon even though they were hekdesh because he was in dangerous situation. He needed the stones to protect him from the wild animals. Accordingly, the first question returns. How could he then use these stones to build an altar, if these stones were actually used for his personal needs? He answers based upon our Gemora, which states that if one knowingly uses hekdesh for his own personal needs, the hekdesh does not become deconsecrated. Consequently, Yaakov was permitted to use these stones for an altar, for his deliberate usage of the stones beforehand did not deconsecrate them.

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