Order of the Parshiyos

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

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

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

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

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Amount of Lines that Invalidate a Document

The Gemora asks: And how much is the space that disqualifies a document?

Rav Yitzchak ben Elozar said: As much space as would be required for the writing of “lecha, lecha” above each other. [The “lamed” is a tall letter, and that should not touch the “end of chaf,” whose leg hangs low.] This indicates that he is of the opinion that the limit is two written lines and four blank spaces (for each of those words needs a blank space above for the “lamed” and a blank space below it for the “end of chaf”).

Rav Chiya bar Ammi said in the name of Ulla: As much space as would be required for the writing of a “lamed” on the top line and an “end of chaf” on the lower line. This indicates that he is of the opinion that the limit is two written lines and three blank spaces (for there is no “lamed” on the bottom line, and there is no “end of chaf” on the upper one).

Rabbi Avahu said: As much space as would be required for the writing of “Baruch ben Levi” on one line. Evidently he holds that the limit is one written line and two blank spaces (one space above for the “lamed,” and one space below for the “end of chaf”).

The commentators ask on Rabbi Avahu’s opinion: How can he maintain that the document is invalidated with one line of text and two spaces (one above and one below it) when the Gemora above clearly ruled that it is a space of two lines of text that invalidate a document!?

Some Rishonim answer that Rabbi Avahu disagrees with Chizkiyah and hold that the amount of space needed to disqualify the document is not measured according to the handwriting of the witnesses; rather, it is based upon the handwriting of the scribes. Accordingly, it is sufficient with one line of text and two empty spaces, for the scribe may manage to use the space for two lines of text with an empty space between them. According to this explanation, Rabbi Avahu agrees with the braisa above, which ruled that a space of two lines of text invalidates a document.

Tosfos Ri”d answers that Rabbi Avahu maintains that the space of two lines of text which invalidate a document is without any space above them or below them; it is referring just to the lines of text and the space between them (not like Rav Nachman bar Yitzchak). According to this interpretation, Rabbi Avahu’s amount and the ruling of the braisa are precisely identical, for one line of text with two spaces is exactly the same as two lines of text with one space between them.

The Ritv”a writes that Rabbi Avahu holds that the two lines mentioned above that invalidate a document refer to two blank spaces surrounding one line of text.

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Invalidated Contracts and Gaps in Sechach

Last Line of the Contract

Rabbi Yochanan says that a contract must review its content in the last line, and Rav Amram explained that this is because we disregard anything in the last line before the signatures.

The Rishonim explain that we fulfill this by writing vkanina – and we (the witnesses) received authorization regarding everything stated above.

The Rosh rules that if a contract does not summarize its content at the end, it does not conform to the required format of a contract, and is invalid.

The Ramban rules that it is valid, but we disregard whatever is written in the last line.

The Shulchan Aruch (HM 44:1) rules like the Ramban.

The Rishonim state that our custom is to fill in the last line with the phrase “v’hakol sharir v’kayam” - and all of this is in force and validated.

The Rashbam says that this phrase is a form of validation, and gives the line above it full legal force.

Other Rishonim disagree and state that even with our contracts, the last line has no legal validity.

Rabbeinu Tam explains the form of a get, in which we write the following last 2 lines:
v’dain etc. – this should be a contract of divorce
k’das moshe v’yisrael – as instituted by Moshe and Yisrael
Rabbeinu Tam says that the first of these lines is an integral part of the get, and not just a review of the earlier text. The last line takes the place of the validation of sharir v’kayam, and gives the preceding line legal validity.

The Rosh says that nowadays we require a contract to end with sharir v’kayam, and any contract without it is invalid. We therefore give all the preceding lines full legal validity.

The Shulchan Aruch (HM 44:9) rules like the Rosh.

See Shach (10-12, 21) for a deeper discussion of the rationale and ruling regarding sharir v’kayam.

The Gemora explains that a contract with two blank lines is invalid, since we are concerned that one will put false information in one of the blank lines.

The Ramban explains that on a contract with more than one blank line, we are concerned that there may have been more than two blank lines, and the last lines are false.

The Ri Migash says that even if we see nothing that would indicate that (no content at the end to the advantage of the creditor), the contract is invalid, since he could have forged part of the contract.

The Rema says that this is a fine on the holder of the contract, since he made forgery accessible.

1 ½ lines

The Gemora discusses whether a contract with 1 ½ blank lines before the signatures is valid or not, and resolves that it is not.

Tosfos (162b iba’ya) debates what was the case that the Gemora was discussing. Tosfos says that if the contract finished in the middle of a line, and the remainder of that line, in addition to the next line, was left blank, such a contract is clearly invalid, since the holder of the contract can fill in the space after the text of the contract. The other option is a case where the contract ended at the end of a line, a blank line was left, and the witnesses started signing half way through the next line. Tosfos says that such a case should clearly be valid, since the only line that can be filled in is the one before the signatures, and we disregard that line. Tosfos concludes that the Gemora’s question was a width of 1 ½ lines, similar to the measure of one and two lines, discussed in the braisa.

Filling in with Relatives

The Gemora cites Chizkiyah’s statement that if one filled in blank space in a contract with witnesses that are relatives to the parties, the contract is still valid.

The Rishonim debate in what context Chizkiyah made his statement. Rabbeinu Chananel says that Chizkiyah is referring to a get kereyach – a bald contract, i.e., a closed contract (mekushar), which is missing witnesses. Such a contract must be signed by three witnesses on each of its enclosures. Chizkiyah is saying that if one used relatives for the extra signatures necessary, the contract is valid.

The Mishna in Gittin (81b) records a dispute between Rabbi Akiva and Ben Nanas about this case and Chizkiyah is ruling like Rabbi Akiva, who only allows relatives to fill in the necessary signatures.

The Rashbam challenges this position, since Chizkiyah, an Amora, would not need to rule or discuss a case that was already discussed in a Mishna, nor would he need support from a braisa, since he is supported by Rabbi Akiva in a Mishna.

Rather, the Rashbam says that Chizkiyah is discussing the case of our Gemora, i.e., a contract that had too much blank space before the signatures, and is stating that if one filled in this space with related witnesses, the contract remains valid.

The Mishna in Makkos (5b) states that if a group of witnesses testify, and one is found to be invalid, the whole testimony is invalidated.

Tosfos (162b nimtza) cites different opinions regarding how to reconcile this Mishna with Chizkiyah’s statement, validating a contract in which relatives signed to fill in blank space.

The Rambam (Edus 5:6) rules that a contract with two valid witnesses is assumed valid, even if the remaining witnesses are not valid. If the witnesses are available, or if others were there, we investigate whether they signed together. If they signed together, the contract is invalid, but it is otherwise valid.

Rav Chaim Brisker explains that the Rambam considers witnesses on a contract to have two parts to their testimony – the witnessing, which takes place at signing, and the testimony, which occurs when the contract is brought to court. When a contract is brought to court, the Gemora says that witnesses signed in a contract are considered to be fully examined and accepted, and they therefore exist independently, and the invalid witnesses do not affect the valid ones’ testimony. However, if they signed together, they have joined together in their witnessing, and therefore fall under the ruling in Makkos, invalidating the contract they signed.

Invalid Schach and Gaps

Chizkiyah cites the rules for gaps in s’chach, and invalid s’chach, as a precedent for his ruling that invalid witnesses can be better than blank space in a contract.

Tosfos explains that the measures given for invalid s’chach (4 tefachim) and gaps (3 tefachim) are only in a case where these areas go from one end of the sukkah to the other, and thereby make the valid s’chach not be surrounded by three walls, or when there isn’t the minimum area of valid s’chach (7 x 7 tefachim). However, if the valid s’chach surrounds these areas, or if these areas are in a location where the valid s’chach has 3 walls around it, and there is at least 7 x7 tefachim of valid s’chach, they do not invalidate the sukkah, but only their location itself.

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Get Mekushar Bizman Hazeh

The Mishna states: A plain document - its witnesses are inside it (on the bottom). And a tied one - its witnesses are on the reverse (between one fold and the next). [They began by wring a single line or a number of lines of the essence of the document, and they folded the written part upon the part below and sewed them together. Another line or lines were written, and again the parchment was sewn down, and the procedure was repeated until the last fold. Each such fold was known as a kesher, and that is why it is called a get mekushar. The Gemora explains that the tied document type was ordained by the Rabbis primarily for gittin. They instituted it for the hot-tempered Kohen who might in a fit of anger decide to divorce his wife. Unlike any other Jew, a Kohen may not marry a divorcee, including his own ex-wife. They therefore instituted the tied deed which cannot easily be written quickly in order to allow time for the Kohen’s temper to cool. As this document type was ordained for divorce, the Rabbis also instituted it for other documents, for bills of indebtedness as well as for bills of sale so that one may choose the tied document, so as not to differentiate between bills of divorce and other documents.] A plain one whose witnesses signed on its reverse and a tied one whose witnesses signed inside it - both are invalid. Rabbi Chanania ben Gamliel says: A tied one whose witnesses signed inside it is valid, because he can make it a plain one (by not sewing the knots; and even though there are spaces between one line and the next, one need not be concerned about that, as there are many unskilled scribes who leave considerable space between one line and another). Rabban Shimon ben Gamliel says: All is in accordance with the custom of the place. A plain document requires two witnesses, while a tied document requires three witnesses. If a plain document contained one witness or a tied document contained two witnesses, they are both invalid.

According to the Ramban, the Tannaim of the Mishna disqualified even a shtar where the witnesses signed on both sides – underneath the body of the shtar as in a plain document, and on the opposite side, in the manner which is done in a tied document. The reason for this is because the “ba’al hashtar” – the owner of the document – is particular as to how the shtar should be written. If he instructed them to write it as a plain document, the signatures of the witnesses on the back side of the shtar will ruin its “openness”; and if his instructions were to make it a tied document, their signatures on the front side remove the document from being called a tied document.

The Nimukei Yosef infers that according to the Ramban, there could be room to validate a tied document nowadays. This is because it is not the custom at all to make a tied document, and it does not enter the mind of the ba’al hashtar to instruct them to make it opened and not tied.

However, he says, according to other Rishonim’s explanation of the Mishna, it would still be invalid. They explain that the reason that a plain document is invalid when the witnesses sign their names on the back is because it was not done in the manner that the Chachamim instituted; it has nothing to do with the ba’al hashtar’s instructions. Accordingly, nowadays, a document where the witnesses signed on the back will be invalid, for it is not being done according to the established practice of the Chachamim.

The Rem”a (42:1) cites both opinions regarding this.

The Shac”h understood that the Rem”a, at least in one opinion, is validating a shtar that was completely made like a tied document – meaning, the witnesses signed only on its back side. The Shac”h disagrees and holds that this would be disqualified according to everyone, for it was not done according to the established practice of the Chachamim.

The Tumim writes that this was never the intention of the Rem”a. He was only referring to a case where the witnesses signed on both sides – underneath the body of the shtar as in a plain document, and on the opposite side, in the manner which is done in a tied document.

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Grandson vs. buyer

The Gemora rules: If a son sold the estate of his father (the portion which he was supposed to inherit) during the lifetime of the father, and he died (first the son and then the father), his son (the son of the son) may seize it from the purchasers (for it has now been clarified that it was never in the son’s possession to sell it, for he died before the father and never inherited it). The Gemora concludes that there is no clear proof to this halachah.

The Rashbam writes that the halachah is in fact that the grandson may take back the field, but it is difficult to understand (according to the Gemora’s discussion), since there is no conclusive proof.

Rambam (Hil. Mechira 22:7) rules explicitly in this very case that the grandson may take the field, and although the Shulchan Aruch (Choshen Mishpat 211:3) does not give this exact example, it is clear that the ruling would be the same.

The question is: Does the grandson need to repay the buyer?

A very important part to this is a concept that one cannot sell something that is not yet in this world, which is precisely what the son did, since the inheritance did not yet belong to him at the time of the sale (it should be as if it was not yet in existence). Therefore, the grandson has every right to take back the field. Tosfos and the Ra”n explain that the Gemora’s difficulty was not with this part of the halachah, but rather, it was with the ruling that the grandson may seize the field without compensating the buyer.

The Rashba further explains that we are forced to say that the grandson does not have to pay back the buyer because if the halachah were to be that the buyer must be reimbursed, then it should emerge that even the father should be able to take back the field.

The Baal Ha’itur and the Baal Haterumos both follow the opinion of the above Rishonim as well. The Shulchan Aruch (ibid) rules that the buyer is not reimbursed.

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Dancing at a distant Wedding

DISTANT CELEBRATION OF
REB AKIVA EIGER’S WEDDING

Reb Wolf Eiger, the uncle of Reb Akiva Eiger was unable to attend his nephew’s wedding. He made a simultaneous banquet of his own to celebrate the occasion. Reb Shaya Pik and other Rabbanim attended the festivities. He wrote to his nephew about the halachic issues (if one can fulfill the mitzvah of counting the omer by way of writing) which were discussed at the banquet.

What was the point of such a celebration? They weren’t dancing before the groom or the bride; they weren’t praising the groom in front of the bride. What caused these Rabbonim to celebrate in such a manner?

In the West (Eretz Yisroel) they would say: (A man who does not have a wife lives) without Torah.

Why is not having a wife like living without Torah; if anything, there exists more time for Torah study, not less?

Our Gemora refers to Ben Azzai as the “Talmid chaver” of Rabbi Akiva. Ben Azzai was considered somewhat of a disciple of Rabbi Akiva.

Rabbeinu Gershom comments: Since Ben Azzai was a “bochur,” he was unable to comprehend halachic logic as well as Rabbi Akiva.

What is the connection between being a “bochur,” and not comprehending to the fullest extent?

I once heard from my Rosh Yeshiva, HaRav Chaim Schmelczer zt”l that Rabbeinu Gershom means that Ben Azzai was a bachelor, and one who is not married does not have the same level of contentment as one who is married. Torah study requires one to be at ease; one must have a menuchas hanefesh in order to comprehend the depths of the Torah. This is what Ben Azzai was lacking.

This is the explanation of the Gemora. One who is not married is akin to living without Torah. He may have more time for Torah study, but he is lacking the inner contentment which is a prerequisite for Torah.

Perhaps this can explain what caused Reb Wolf Eiger to celebrate the wedding of his nephew Reb Akiva Eiger even though the bride and the groom were not present; in fact, they were miles away. Reb Wolf understood that the marriage of Reb Akiva Eiger will result in his becoming the Reb Akiva Eiger that we know now. The wedding was not only a private joy for the families of the bride and groom, but rather, it was a simchas hatorah; a celebration in the honor of Torah. Reb Akiva Eiger’s Torah would spread throughout the world. This could be celebrated anywhere, even without the choson and kallah.

HALACHOS OF THE DAF


A Husband and Wife Die in a Building

The Shulchan Aruch (Even Ha’ezer 90:6) rules in accordance with Beis Hillel. In the case where both the husband and wife die due to a building collapsing and it’s not clear who died first, the halachah is that the kesuvah goes to the inheritors of the husband; the nichsei melog to the inheritors of the wife, and the nichsei tzon barzel they split evenly. Obviously this only applies if they didn’t have children together, for if they did, it wouldn’t make a difference who died first, since the children would inherit everything.

Although a woman normally needs to take an oath (that she never collected it yet) in order to collect nichsei tzon barzel (ibid 96:1), in this case, we allow her, and now that she died - her inheritors collect it. Since the reason why a woman needs to take an oath is because we are suspicious that she might have taken some items before he died, in our case, where he died suddenly, we don’t assume that she took anything (Celkas Michokek).

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Defiling the Dead and Autopsies

Defiling the Dead
Rabbi Akiva had said that we cannot examine the corpse to determine if he was a minor or an adult at the time of his death, for it will be defiling the dead.

Reb Yosef Engel in Gilyonei HaShas writes that he did not find a source to the prohibition against defiling a corpse. Perhaps, he says, it is from the verse which teaches us that we are not permitted to let a dead man hang on a tree overnight. From there we see that a corpse is supposed to be treated with honor. Any disrespect to the dead will be a violation of this verse.

He also suggests that since there is a positive commandment to bury the dead – if one will be examining the corpse, even while buried, nevertheless, during the defilement it is regarded as if he isn’t buried, and one would be transgressing the positive mitzvah of burial.

HALACHOS FROM THE DAF

Autopsies: How and When?

By: Meoros HaDaf HaYomi

Physicians have always wanted to gain medical and anatomical knowledge from examining the bodies of those who expired from various diseases. We are forbidden to desecrate the departed, but, on the other hand, we want to use any potential medical information to save the lives of the similarly afflicted. All the halachic authorities treating the subject agreed on the clear principle that the Torah forbids preserving any organ from a Jewish body and thus delaying its burial or desecrating a Jewish body in any manner, even by the otherwise usual means of an autopsy to advance medical knowledge or to investigate cause of death. Autopsies are included in learning the medical profession, but the Torah strictly forbids such operations on Jewish bodies. Alternatively, medical information may be gained from autopsies on the cadavers of non-Jews who agreed to such while alive.

A Jew died in a hospital from a certain disease. Another Jew in same ward was diagnosed as terminally ill with the same malaise and the medical staff want to autopsy the body to discover the best way to operate on the lingering patient and, hopefully, save his life. As an introduction to this topic, we cite the Noda BiYehudah who warned that “even gentile doctors perform experiments only by operating on those executed for crimes or on those who agreed to such while alive” (Responsa, 2nd edition, Y.D. 210). In that era, then, every doctor was exceedingly careful about autopsies but, nonetheless, halachic authorities expressed their suspicion that granting permission in some case would invite a wave of desecration and dishonor of the departed. As usual, we do not intend to present the practical halachah, but merely to address current topics. The following discussion therefore does not include all the opinions and their rationale, but is limited to the two major approaches of the leading poskim, and we start with our sugya, which forms a basis for a fundamental difference of opinions.

The great Tanna Rabbi Akiva lived in Bnei Brak and already then the halachah was a guiding beacon for residents of the town. The Gemora recounts that some people asked him to allow them to disinter their relative to ascertain if he was halachically an adult at the time of his death. Some merchants, on the other hand, claimed that he was grown up when he sold them land he had inherited from his father. The halachah is that only a mature adult is considered sufficiently experienced to sell inherited land and the heirs wanted to exhume the deceased to prove that he was not halachically mature at his death. They would then be able to invalidate the sale of the land and claim it for themselves. Rabbi Akiva forbade them to do so, as one must not desecrate the deceased and, moreover, anatomical features are liable to change after death, making it impossible to pinpoint the person’s age. What, though, is Rabbi Akiva’s source for the prohibition on desecrating the deceased? According to Responsa Binyan Tziyon (171), Rabbi Akiva meant that we must never desecrate the dead, as such acts are regarded as robbing them and, if so, we are not allowed to do so even to save a life. Although we must ignore almost all prohibitions to save a life, which is a mitzvah in itself, the dead are exempt from mitzvos and we must not desecrate them, causing them great pain. Moreover, even a person in danger may not save his life by stealing, if he will never be able to return the theft (see Bava Kamma 60b and Rashi and Tosfos ibid) In our case, then, the doctors would be forbidden to autopsy the deceased in an attempt to save the terminally ill patient. Still, the Noda BiYehudah (2nd edition, Y.D. 210) and the Chasam Sofer (Responsa, Y.D. 336) hold that Rabbi Akiva did not forbid making use of the deceased’s remains to save a life. The relatives who came to him, after all, wanted to clarify a matter of property. As for saving lives, though, the prohibition on desecrating the dead is like any other prohibition and must be ignored and “it is almost certain” that there is no transgression involved.

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The famous get delivered at Cleves

If He’s Healthy, He must Produce Evidence that he was Moribund

The famous get delivered at Cleves
Not many divorce cases have earned a special name or deserved to be assiduously detailed in halachic literature. One outstanding case, though, was that of Yitzchak Neierburg and Leah Guntzheusen of Germany, who were divorced very soon after their marriage about 200 years ago, on 8 Elul 5526. The couple wed in Mannheim but the bill of divorce was delivered in Cleves and has been since known as “the Cleve get.”

A divorce enacted at the Dutch border
Immediately after the wedding, the young husband became very introverted and sometimes murmured incomprehensible statements. One the Shabbos of the sheva berachos week, he took the dowry of 94 gold karolen and absconded to a neighboring village and, when discovered, explained that he had to desecrate the Shabbos and flee because “all his limbs trembled and a deathly fear had befallen him.” For some reason, the bride’s family did not yet demand a get. After the next Shabbos, Neierburg was in Bonn where he summoned his wife’s relative, Rabbi Shimon Copenhagen, and told him he was in great danger and had to leave the country immediately. There was no beis din in Bonn, so the wife’s family continued to Cleves, on the Dutch border, as Neierburg intended to flee to England via Holland. HaGaon Rav Yisrael Lifschitz, the rabbi of Cleves and the grandfather of the author of Tiferes Yisrael on the Mishnah, arranged the divorce once the husband insisted that he would be condemned to death unless he fled to England. The couple’s financial matters were then settled and Leah returned home.

The dispute that engulfed the halachic community
On hearing the news, Neierburg’s father became incensed, especially about the financial settlement which he deemed unfavorable to his son. He appealed to the rabbis of Mannheim and Frankfurt-am-Main to disqualify the get, claiming his son was insane and therefore halachically unable to divorce. The rabbis of Frankfurt and Mannheim soon issued a long and elaborately explained decision disqualifying the get and consequently defining Leah as still married. Her family appealed to other leading rabbinical authorities and the stormy discussion echoed throughout the halachic community to the point where every prominent expert voiced his opinion. The replies of some poskim were even publicized, including those of HaGaon Rav Yechezkel Landa, author of Noda’ BiYehudah; HaGaon Rav Aryeh Leib of Metz, the Shaagas Aryeh; HaGaon Rav David, av beis din of Dessau, known for his Korban Ha’Eidah; Rabbi Shlomo Chelma, famous for his Mirkeves HaMishneh on Rambam; Rabbi Elchanan Ashkenazi (Sidrei Tohorah); Rabbi Yitzchak HaLevi of Hamburg; HaGaon Rav Yaakov Emdin; and Rabbi Shaul of Amsterdam.

Why the Frankfurt community was hard put to hire a rav
So many rabbis expressed their opinions that several years later, when the Frankfurt congregation was seeking to appoint a new chief rabbi, the leaders of the community were only willing to consider one who did not disagree with his predecessors and they only found three candidates. The Frankfurt rabbis were the sole ones to still insist that Neierburg had been insane, whereas all the others allowed Leah to remarry. We shall now devote some study to the thought-provoking reply of the author of Shaagas Aryeh, publicized in Responsa Or HaYashar and at the end of his major work (Shaagas Aryeh, addition to #2).

In our sugya Rabbi Nassan states that one who had been moribund but recuperated may renege on the gifts that he distributed on his deathbed, as he was then sure that he was in his last moments and would have no further need for his property. What, though, is the halachah if we are unsure of the state of the person’s health when he distributed the gifts? The Gemora says that we must examine his condition right now. If he’s healthy now, we should assume he was so then but if he’s presently infirm, we assume he was the same then unless one of the sides proves otherwise.

Back to the get at Cleves, then, it had to be ascertained if Neierburg was sane or insane when he gave Leah her get, and, according to our sugya, we should consider his current condition. The Shaagas Aryeh wrote that he detained Neierburg at Metz for three days on his way to London and found him sane, and consequently, in his opinion, the get was valid. (The Shaagas Aryeh included many ideas, profound pilpul and halachic principles that we cannot fully explain here due both to lack of space and their profundity; we have touched on only one of his ideas, related to our sugya, without citing all his supportive proof leading to his final decision). Some record that Neierburg returned to Germany and remarried Leah but others deny the fact.

HALACHOS FROM THE DAF

Is He Alive?
In what type of scenarios do we remain with the assumption that a missing person is still alive? Which circumstance must occur before we assume that a missing person may have died?

The Shulchan Aruch (Even Ha’ezer 141:69) distinguishes between various settings. In cases where the city was;
a) surrounded by an army from the nearby government;
b) a ship floundering at sea;
c) a person that is on his way to be tried in a case where convicted carries the death penalty;
In all these cases, the person in question is considered to have remained alive.

Conversely, in cases where;
a) the city was captured;
b) surrounded by an invading army;
c) a ship that is lost at sea;
d) a convict that is on his way to be executed by non-Jews;
e) when a person was dragged away by a wild animal;
f) a river swept him away;
g) a house collapsed on him;
In all these instances, we cannot safely assume that he assuredly remained alive; therefore we give him the status of both a living and dead person.

This would have strict implications:
a) His wife cannot remarry - for he might be alive.
b) Even if a get was given to an agent to give to his wife, he may not do so - for he might be dead (since one cannot divorce his wife after he is dead). If the agent did give her the get, she would have the status as a safek migureshes.
c) If the missing person is a Kohen, his wife cannot eat terumah - for he might be dead.
d) If the missing person is a Yisroel, but his wife is a daughter of a Kohen, she cannot eat terumah - for he might be alive.

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One Gift to Two People

The Gemora discusses a case where a shechiv mei’ra gave the same gift to two people and both these people were zocheh (a legal acquisition). Rav says that the first person is zocheh, while Shmuel argues that the second one is zocheh. The halachah follows Shmuel (Choshen Mishpat 250:13).

The Rashba (Shu”t Chelek 2 Shaila 293) was asked what to do in a peculiar case. The story was that a father, Yaakov, gave his son Reuven a field as a gift while in complete health (matnas bari), stating that it is Reuven’s “from today and after I die,” which means that the field itself would immediately belong to Reuven, but the “fruits” (the profits) would belong to the father until he died, and only then would it be transferred to Reuven.

Years passed and Yaakov realized he was nearing his end, so he drew up a will dividing his inheritance among his children. Interestingly enough, the very field that was previously given to Reuven, Yaakov stated in his will that it would belong to Shimon. At the end of the will, Yaakov added a clause that if any of the children would contest any part of the will, than he would forfeit his part to the inheritance that he had received. So the question is: who does this field belong to?

The Rashba answered that logic would dictate that Yaakov simply forgot about the gift he gave Reuven years ago, and Shimon should never have received this field, and more importantly we should disregard the clause. However ,since there is a possibility that he did remember and Yaakov decided to give this field to Shimon, this causes a serious problem for Reuven, for although the field is rightfully his, if he opens his mouth, he loses the rest of the inheritance. On the other hand, says the Rashba, Shimon cannot keep the field either, for it clearly belongs to Reuven, since Yaakov cannot take away a matnas bari through any means. Therefore we have reached an impasse; Shimon cannot claim the field because it’s not his, and neither can Reuven, because of the clause. The only way out, concludes the Rashba, is that Reuven’s inheritors can claim the field (once Reuven dies), if in fact Reuven never contested the will. This is because the only thing stopping Reuven was that Yaakov added a clause in the will, which effectively muzzles Reuven’s mouth, but not his inheritors.

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Tefillin; Sefer Torah

Tefillin as a Garb

The Gemora states: Tefillin are called possessions. This is proven from the following Mishna: If someone consecrates his possessions, his tefillin are evaluated (and he redeems the tefillin from hekdesh with money).

The Gemora inquires: What would be regarding a Sefer Torah? Do we say that since it is forbidden to be sold, it is not included in “possessions,” or perhaps, since it may be sold for the study of Torah or to marry a woman, it is regarded as his possession? The Gemora leaves this question unresolved.

The Rashbam explains: Perhaps there is a distinction between a Sefer Torah and tefillin. Since one wears tefillin on his body, perhaps it is considered as part of his garb, and that is why it is regarded as a “possession.”

The Maharsham in his responsa (1:148) was asked regarding someone who took a vow to donate money to clothe the naked; is he allowed to purchase a pair of tefillin for a pauper?

A proof is brought from a Tikunei Zohar, which states that when the Torah states (regarding Adam in the Garden of Eden): And Hashem made for Adam and for his wife shirts of skin, and He dressed them; this is referring to tefillin. This, the Gemora in Sotah (14a) explains to mean that you should go in His ways. Just as He clothes the naked, so too, you should clothe the naked. Accordingly, we can say that buying tefillin for a poor person is regarded as clothing him.

The Maharsham cites our Rashbam as a proof to this as well.

HALACHOS FROM THE DAF
Sefer Torah

The Gemora inquires: What would be regarding a Sefer Torah? Do we say that since it is forbidden to be sold, it is not included in “possessions,” or perhaps, since it may be sold for the study of Torah or to marry a woman, it is regarded as his possession? The Gemora leaves this question unresolved.

The Shulchan Aruch (Yoreh De'ah 270:1) writes that it is a mitzvah for every single man to write a Sefer Torah, even if he had inherited one. One may not sell a Sefer Torah even if he has many Sifrei Torah, and even in order to buy a newer and nicer one. However, one may sell a Sefer Torah in order to learn Torah or to get married, if he has nothing else to sell. The Re”ma adds that one may also sell a Sefer Torah in order to redeem captives.

The Shulchan Aruch in other places adds a few other cases where one may sell a Sefer Torah. Orach Chaim 153:6 states that it would be permitted in order to have money to support the students, and if money is needed to marry off orphans. The Chelkas Michokek (Even Ha'ezer 1:1) writes that this only applies to a yasom (an orphan boy) and not to a yesomah (an orphan girl). However, the Magen Avraham (Orach Chaim ibid) rules that it applies to a yesomah as well. Bais Shmuel and many others including Mishnah Berurah rule as the Magen Avraham.

As for the answer to the Gemora’s inquiry, the Shulchan Aruch (Choshen Mishpat 248:11) rules that the halachah is in doubt whether it is included or not (because the Gemora did not answer the question), and we will only know once Eliyahu Hanavi comes, and he will resolve this question for us. Therefore, if the recipient has already taken the Sefer Torah, the shechiv mei’ra cannot take it back.

This concept is elucidated by the Drishah, with a fascinating halachic distinction. In cases where the Gemora has a teiku and the halachah is not clear due to the logic that can go both ways, and we will only know once Eliyahu Hanavi comes, then, we say that if the other party grabbed it, we cannot take it away from him, since the halachah may very well be in his favor. However, in cases where the Gemora isn't clear what the halachah is due to a question of what an average person had in mind, then we won't know the answer when Eliyahu Hanavi comes, since some people think like this and some like that. Therefore in our case where the question is due to the logic that can equally be heard both ways, and we will know how to rule when Eliyahu Hanavi comes, the halachah is that if the recipient grabbed it, we cannot take it away from him.

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Slaves and Land

Comparing Slaves and Land

The Torah has a hekesh which equates slaves with land. Our Gemora says that although slaves might be considered as land, there are differences between the two stemming from the fact that slaves are movable and land is not. Therefore, our Gemora says that even if people consider slaves like land, they don’t mean to include them is the sale of the city. All real land is included in the sale.

There are other instances where the actual difference between slaves and land causes them to have different halachos as well. Rav Chaim HaLevi quotes a Raavad who differentiates between these two categories. If one steals a slave and the owner gives up hope of retrieving him, the owner loses ownership of him. This is not the case with land. Why should there be a difference? Rav Chaim answers that if giving up hope is related to the ability the Torah gives thief to acquire a stolen object, there would be no difference between the two. Anytime an object is out of the possession of the owner, and the owner has lost hope of retrieval, he relinquishes ownership. It doesn’t matter whether the object was lost or stolen. Therefore what matters is whether the object in reality is out of the owner’s possession. Slaves, which move, can be considered out of the owner’s possession. Land, which is stationary, is always considered in the owner’s possession. Thus, even though there is a halachic comparison between the two categories, sometimes the different properties of each will determine differences in halachah.

HALACHOS FROM THE DAF

Slave - Karka or Mitaltilin

The Gemora inquired: When a shechiv mei’ra gave his movables as a gift, does a non Jewish slave have the status of karka (property, real estate), or movables (lit. movable objects, i.e. possessions that are not property)? Rashbam points out, that for Biblical laws there is no question that they are considered karka, however, here we need to ascertain what the shechiv mei’ra had in mind when he gave a gift of movables - did he mean to include the slave or not.

One of the cases mentioned in Rashbam where a slave has the status of karka is by kinyan. The Shulchan Aruch (Choshen Mishpat 196:1) rules: A slave has the same laws as karka, therefore he can be acquired via money, document or chazakah (he may also be acquired through kinyan suddar and meshicha, ibid). In order to be acquired via chazakah, the slave needs to serve his master, for example - he should tie or untie his shoes; he should carry the masters clothing to the bathhouse or do any of the myriad other chores which he is expected to do once he is officially his slave.

There is a machlokes Rishonim how to rule. The Gemora did not answer this question; therefore, the Rema says that the slave is not included in the gift, since the burden of proof is on the one exacting money from his fellow. The Rif, Rosh and Rambam, however, rule that the slave is included.

The Shulchan Aruch (Choshen Mishpat 248:10) rules that the slave is included.

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Odisa

Kinyan through Admission

The Gemora in Bava Metzia (46a) struggles to figure out a way how Reuven can transfer his money that he has at home to Shimon, who will then use that money to redeem the ma’aser sheini of Reuven and avoid the additional fifth surcharge.

The Gemora suggests that if Reuven would have land to transfer to Shimon, he could transfer the money “agav” the property. Although Tosfos in Bava Kamma (12a) writes that kinyan agav is only Rabbinical, apparently Tosfos understands that even a Rabbinical kinyan would be sufficient to establish Shimon as an owner of the money to redeem the ma’aser sheini and biblically avoid the additional fifth surcharge.

Tosfos raises a question: Even without a kinyan agav or kinyan chalifin, can’t Reuven very directly transfer to Shimon the money by “admitting” that it actually belongs to Shimon? This is what Rav Ikka asked Rava in our Gemora.

In this question, Tosfos evidently assumes that an admission doesn’t merely allow Beis Din to act as if witnesses testified, but it actually transforms the ownership of the item to belong to Shimon and would be considered Shimon’s money for ma’aser sheini redemption purposes.

The Ketzos HaChoshen (40) answers Tosfos question by establishing a clause in this type of kinyan that it must be done in the presence of witnesses. Therefore, we can easily state that we are dealing with a case where there are no witnesses available to allow the kinyan hoda’ah (admission) to go into effect.

The Ketzos (194:4) has an elaborate discussion where he explains that this type of admitting would serve as a kinyan even for the purpose of transferring chametz that is another place to belong to a gentile. We see from the fact that it works for ma’aser sheini that it not only works for monetary purposes, but even for prohibition purposes, therefore it should work for chametz as well.

However, Tosfos in Bava Kamma (104b) implies that it would not work on a Biblical level and wouldn’t work for ma’aser sheini purposes. Nevertheless, the Ketzos argues that it should still work for chametz since one has nullified the chametz and the requirement to rid himself of the chametz is only Rabbinical. But in truth, the Ketzos points out that even if kinyan hoda’ah is only Rabbinic in origin, it shouldn’t be any worse than kinyan agav which works for ma’aser sheini.

Reb Avi Lebowitz suggests that Tosfos in Bava Kamma doesn’t necessarily contradict the other Tosfos because Tosfos in Bava Kamma is speaking about a case where he is admitting that he owns property by which he will transfer the money through a kinyan agav - to which Tosfos says that it doesn’t work on a Biblical level. But this Tosfos speaks of directly transferring the money through an admission, which would work on a Biblical level.

The rationale for the distinction is that admitting to owning property would require two Rabbinical allowances - one for the kinyan hoda’ah and a second for kinyan agav. A kinyan which is based on a combination of two Rabbinical allowances is weaker and perhaps would not work on a Biblical level.

HALACHOS FROM THE DAF

A Ger Does Not Inherit

The Gemora relates that Issur cohabited with Shmuel’s daughter and only converted once she was pregnant. The child would one day become the great Amora, Rav Mari. Years later, Issur died and his estate was worth a large amount of money. The Gemora deals with how Issur would be able to transfer the money to his son, Rav Mari. The very first of many different ways that the Gemora tried to transfer the money, was via inheritance. But that couldn’t work, since Rav Mari cannot inherit his father.

The Shulchan Aruch (Choshen Mishpat 283:1) rules that although the Torah says that a non-Jew can inherit his father, a convert cannot, since he has the status of a infant that was just born into Klal Yisrael without any Jewish parents. However the Chachamim did allow for him to inherit, for they feared that he would revert to being a non-Jew in order to claim the inheritance.

However in a case where the father is a convert and his child is a non-Jew (i.e. the father converted after the child was born), or even when both the father and son converted, the son does not inherit the father, since the above reason obviously doesn’t apply. Furthermore, even if the father converted before the child was born (but after conception), that son cannot inherit his father, nor can the father inherit him. The reason is that a convert has a newborn status in regard to relation, and only a child that was born and conceived after he converted can be said to be his Jewish son. If, however, the conception was prior to the conversion, then this child cannot be considered his son.

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Bava Basra 147

Being Moichel a Shtar Chov that was Previously Sold

The Gemora states that a lender who sold a shtar chov (a document stating that the borrower owes x amount of money to the lender) to a third party, which would mean that the borrower would have to repay the loan to the third party, and then the lender forgives the payment (in the Gemora’s vernacular - he was moichel the shtar), it is valid and the borrower does not have to pay back the loan to neither the lender, nor the third party. The rationale for this halachah varies, and there are many halachos that pertain to this complex concept. We will discuss a few of them.

For starters let’s understand the problem. Of all the various types of sales that we have learned about, this is the only one that is seemingly not final. This means that although the sale of this shtar was completely valid, and the previous owner should have absolutely no say in the matter at all, he can easily cause the third party to hold a worthless piece of paper by being moichel the shtar. Furthermore, the lender’s mechilah can take effect even if the third party bought the shtar on the condition that the lender would not be moichel it! Another issue is that even an inheritor can be moichel. How does the lender have such broad powers?

Before we answer these questions, it is important to note that the third party is remunerated. Although logically he cannot collect the money from the borrower via this shtar, the lender must reimburse the third party because of the concept of dina di’garmi, which basically means that a person that inadvertently harmed someone has to pay his damages.

There is a machlokes in the Rishonim if the ability to sell a shtar is of Biblical origin or merely a Rabbinic enactment. The Rif and Rambam hold that it’s a Rabbinic enactment, while Rabbeinu Tam maintains that it is Biblical.

The Drishah (Choshen Mishpat 66:23) explains that according to the Rishonim that hold it’s Rabbinical, the rationale why the lender is able to forgive the payment even though he had already sold the shtar, is because the shtar is not intrinsically valuable. All other types of sales revolve around an item which has monetary value, as opposed to a shtar chov, which is only worth money in theory. Therefore the sale was never Biblically valid, and can be accepted by the Rabbis according to their terms.

Rabbeinu Tam, however, holds that the ability to sell a shtar chov is recognized by the Torah. If so, a shtar should be no different than any other sale where the previous owner is completely cut off from the item?

The Ran explains that in fact there is a huge difference. When Reuven borrowed from Shimon, two things take place: 1) A shibud haguf - the onus is placed on Reuven to repay Shimon. 2) A shibud nichasim - an onus is placed on Reuven’s money to repay the loan, which means that if Reuven doesn’t repay the loan, then his money serves as a guarantor. A shibud haguf cannot be sold, since Reuven’s shibud is exclusively to Shimon. On the other hand, a shibud nichasim can be sold, which would mean that Reuven’s money is paid to the third party, since this shibud is to repay the loan and not necessarily to the person who lent it.

Now let’s work this out logically. Since; a) the shibud haguf never left the lender, and b) the shibud nichasim is only in place if the borrower defaults on his loan, or in other words - if there would not be a shibud haguf, then there wouldn’t be a shibud nichasim, then we must come to the conclusion that if the lender is moichel the shibud haguf, then the borrower does not have to repay the loan to either of them.

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Divorce in the Back of His Mind

The Gemora relates a story about a man that was told that his wife can't smell. Rashbam quotes a Gemora in Kesuvos regarding a man that was mekadesh a woman on the assumption that she has no mum (blemishes, or deficiencies) and finds out once they are married that she does, he can claim that it is a mekach ta’us (a mistaken purchase) and she leaves the marriage without a kesuvah. This only applies to a mum that is hidden (i.e. it was not noticeable before they got engaged), for example, she can’t smell. The Gemora continues: The man decides to test her. He takes her into a secluded place and hidden in his pocket is a radish. He remarks to her that he smells radishes from nearby Galilee. The point of this was to test her response, and from that he’ll be able to discern if she could really smell or not. His wife immediately understood what this whole charade was about, and jokingly replied that she can smell the dates (which in those days was eaten together with radishes). The man realized that she can smell after all, and was about to apologize, but calamity struck and the room that they were in collapsed on her, and she died.

The question is: Can the husband inherit his wife’s property? The Gemora rules that “since he only went into the secluded place to test her, he may not inherit her property.” The Rashbam explains that since the husband tested her to see if she can smell, and although she was able to, in the back of the husband’s mind, he was about to divorce her if she had a mum. Therefore the status of imminent divorce stays, until he clearly has no intention of divorcing her. The Rashbam logically applies this to any case where the husband had an argument with his wife and has in mind to divorce her, if she dies when he is still in that mindset, then he cannot inherit her. He brings proof from a Gemora in Gittin which states that once a husband intends to divorce his wife, as long as he still has that mindset, he cannot continue to eat her fruits (a husband has a right to eat the fruits of his wife’s field or property).

Tosfos explains that the Gemora is talking about a man that was not married to the woman, rather he was engaged. Understandably, the Rashbam’s premise that a husband loses his right to inherit his wife if she died while he had in mind to divorce her, has no basis from this Gemora. Tosfos also disproves the Rashbam’s proof from the Gemora in Gittin.

The Rema (Even Ha’ezer Siman 90 Seif 5) rules that as long as a man did not actually divorce his wife, even if he intended to do so, he inherits her property. This is the opinion of Tosfos.

There is a rule in the halachos of mourning that we go after the lenient opinion. Therefore although we don’t follow the opinion of the Rashbam in regards to inheritance, there are Poskim (Chochmas Shlomo cites Yam Shel Shlomo, Pischei Tshuva cites a Yeshous Yaakov that records that this was the Maharal’s view), that maintain in the above scenario, where the husband had in mind to divorce his wife, he is not considered a mourner.

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Bava Basra 145

Why the Kiddushin Money is Irretrievable

The Gemora cites a dispute whether kiddushin money is irretrievable or not (does a man, when giving money to betroth a woman, resolve in his mind that he is prepared to forfeit the money if this will not result in a nisuin). Rabbi Nassan holds that the kiddushin money is not irretrievable (and it must be returned), and Rabbi Yehudah HaNasi holds that the kiddushin money is irretrievable (and it does not need to be returned).

What is the explanation of the Tanna that holds that the kiddushin money is irretrievable?

The Ritva writes that the man gives the money to the woman on the condition that it should be returned to him if she would die before the nisuin. He adds that this stipulation is only with respect to the kiddushin money more than the value of a perutah, for if the entire kiddushin money was included in this condition (and everything must be returned), it would emerge that they were retroactively never married, and why would it be necessary to give a get (in a case where she retracted prior to the nisuin)! If she would commit adultery, why would she be put to death? It would be a case of a hasra’as safek -- “an uncertain warning,” for if the kiddushin does not result in a nisuin, it would emerge that the man never gave her any money, there was never any kiddushin!

The Rashba disagrees and proves from a Gemora later that all the kiddushin money is returned. And although all the money is returned, the kiddushin is nevertheless valid through the benefit that she received by being able to use the money until she would be required to return it.

HALACHOS FROM THE DAF

What should I Learn?

By: Reb Avraham Klein

The Gemora discusses different types of Torah scholars. There are those that excel in Mishna, some in Aggadah, others in Pilpul, some in Halachah, while there are yet others whose field of expertise is Gemora. They are all part of Torah, and each contributes its part to Torah learning. Although there is a mitzvah of Yedias Hatorah (to know as much Torah as possible), there are halachos in what is imperative to learn.

The Shulchan Aruch (Yoreh De'ah Siman 246 Seif 1) writes that every single Jew is obligated to learn Torah; it makes no difference if he’s rich or poor, healthy or ill, young or old, even if he’s preoccupied with earning a living and taking care of his family, everyone is obligated to set aside time to learn - by day and by night. If it is absolutely impossible for him to learn, either due to the fact that he has no idea how to learn anything, or he is simply extremely busy without even a moment to learn, then he should pay others to learn.

There is an opinion in halachah (ibid Seif 4) that when one is starting to learn Torah (i.e. in his younger years) he should split his learning time into thirds: the first third he should study Tanach, the second - Mishna, and the third - Gemora, and when he gets older, he should just learn Gemora while routinely reviewing Tanach and Mishna. However the Rema rules that Talmud Bavli is considered a mixture of all three, and therefore, if one focused all his energies in Gemora, he has fulfilled his obligation to study Tanach and Mishna as well. The Rema continues that “all one needs to learn is Tanach, Mishna, Gemora and the Halachos that are derived from them, and through this, he will acquire this world and the next.”

The Shach and Taz quote Drishah that notes that there are baalei batim (laymen - people who work and have less time to study Torah) who learn Gemora without halachah. He rules that they must also learn halachah. He bases his ruling from the famous Gemora which states: Whoever learns two halachos a day is guaranteed a portion in the World to Come. Rashi explains that to halachah means halachah lima’aseh (practical rulings; there are instances when the Gemora uses the word halachah, and it translates as Gemora). So although the Rema says that it is sufficient to learn Gemora, that is only for those who learn most of the day, but baalei batim that learn considerably less, must also learn halachah.

In regard to Kabbalah and other esoteric studies, the Shach rules that one should not start learning them before he is 40, since it requires a high level of holiness and purity. Pischei Tshuvah argues and cites Chavos Yair who recommends that one should altogether distance himself from learning these areas of Torah.

Mishna Berurah (Siman 290 Seif Katan 3) writes that it is written in the Zohar that a person should come up with a novel interpretation in Torah on Shabbos, and for those that can’t, they should learn an area of Torah that they never learned before.

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Bundle Up

The Gemora states that catching a cold or heat related illness is considered a negligent illness. The Gemora teaches us that “everything is in the hands of heaven except for heat and cold.”

Tosfos explain that all mishaps and occurrences that happen (in contrast to misfortunes that we actively bring to ourselves, for example jumping into a raging ocean) in our life, is not a random act attributed to queer and meaningless fate. Rather, everything that occurs in our lives, whether big or small, is directly caused by G-d. There is one exception to this Law of Occurrences - illnesses that are caused by heat or cold. This is exclusively in man's department.

There is an interesting difference between the two. The Shulchan Aruch (Orach Chaim Siman 276 Seif 5) rules that in cold places, it is permitted to tell a non-Jew on Shabbos to make a fire (or in today’s vernacular - turn on the heater) for the little children (because for them, it’s cold, even in weather where the adults are comfortable). Once there is a fire, everyone is allowed to benefit from it. However, the Taz and others add that one may not sit close to the fire out of concern that one might momentarily forget and make the fire larger. In a place where it’s extremely cold, one may tell a non-Jew to light a fire (even for adults). The reason for this is, as the Shulchan Aruch puts it, “Everyone is considered ill in regard to the cold.” The ill here refers to the category of “an ill person that is not in danger,” and therefore, we are not allowed to make a fire, but a non-Jew can, because a non-Jew may be specifically asked to perform forbidden labor when there is an ill person, without the hints that usually must accompany an “Amirah Li’akum” (telling a non-Jew to do a melachah on Shabbos).

Similarly, in a case where the air conditioner is on, and it is very cold, one may ask a non-Jew to turn it off. However, if it is very hot, there is no such concept of “Everyone is considered ill in regard to heat.” Although some (Minchas Yitzchak and others) permit to ask a non-Jew to turn on an air conditioner for different reasons, Reb Moishe Feinstein forbade it (Igros Moshe Yoreh De'ah Chelek 3 Shaila 47 Ois 2).

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Halachos on the Daf - Bava Basra 101

Graves

When one sells a ma’amad, the buyer gets the area of 4 kavs. The purpose of a ma’amad was to allow the people returning from burying a dead person, to reflect on the vanities and hollowness of this world and to repent. Its main purpose though, was to comfort the mourners and to cry along with them. So they would walk along this area, and repeatedly sit and then get up again.

When one sold a grave and included in the sale was the path to the grave and the room for eulogies and the area for ma’amad, the relatives of the dead person in the grave may bury another family member there, even over the objections of the buyer. The reason being, since it was the custom to bury all the family members in one area, the buyer is of course entitled to a full refund on the grave. However, the buyer is not forced to give back the area used for ma’amad and eulogies, rather he allows them to use it as needed for the funeral, and then he takes it back.

When one sells an area for the purpose of making a grave, then he gets an area 4 amos by 6 amos. The custom in those days, was not to bury the dead in single graves in a cemetery, rather they would dig out an area 4 by 6 amos, and they would bury up to 8 people in that area, usually all belonging to one family. The design was as follows. Along the length of the wall (6 amos) they would bury 3 on each side, in individual chambers, and along the width – the back wall (4 amos), they would bury two more. The front wall was used as an entranceway or a stairwell to get underground. Each chamber was 6 tefachim wide and 4 amos deep and the height was 7 tefachim (basically the shape of a coffin). Between the chambers on the length, there was a space of an amah and a half, and between the two along the back wall, there was a space of two amos.

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Halachos of the Daf - Bava Basra 93

Selling Defective Seeds


If one sold seeds which are not eaten, rather they are only used for planting, and the buyer after planting them sees that nothing grew out of those seeds, the seller is responsible and must pay back the money to the buyer, even if he didn’t know that there was anything wrong with the seeds. The buyer is not reimbursed for his money or efforts to plant the defective seeds. This is true only in a case where it is readily apparent that the seeds were defective. If however the field was flooded or a similar type of outside factor, then the seller is not responsible, since it may not have grown because of the flooding. On the other hand, if the buyer had not yet paid and he planted them and there was a flood, the seller cannot demand payment, since it could have very well not grown even without the flood, because maybe they were defective. In an instance where the seller can prove that his seeds were not defective, and the buyer’s field was flooded, the buyer must pay.

If one sold seeds which are also eaten, and the buyer plants them and it does not grow, the seller is not responsible, and does not have to give back the money to the buyer. If, however, the buyer said that he’s buying these seeds to plant them, then the seller is responsible. In an instance where the buyer had not yet paid, and he planted them and they did not grow, he may still claim that he had bought it for planting, and the seller would be responsible.

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Halachos of the Daf - Bava Basra 91

Fasting and Blowing Trumpets


The Torah commands us to blow trumpets when a community faces a calamity or danger. In such circumstances, we fast and pray as well, in order that Hashem should have mercy on us.

The reason we blow trumpets explains the Chinuch, is because a person needs to be jolted out of his complacency.

The Pri Megadim elaborates: The whole point of blowing trumpets and praying when there is an impending calamity is so that we take to heart the fact that everything that happens is from Hashem, even the calamity that is imminent. Therefore we fast and pray, and most of all repent, and Hashem will take away the danger. The primary reason why Hashem sent it in the first place is to get us to repent.

There are many different types of dangers that would require us to fast and blow trumpets. Among them include the following:

1) A non-Jewish army is on the way to wage war against the Jews, or to impose taxes, or to forcibly take away a piece of land, or even if they would decree that Jews may no longer adhere to a particular Mitzvah.

2) A plague that kills people (even non-Jews), or pigs. Pigs are of concern since they have similar intestines to people, therefore we are afraid that the plague will travel to people.

3) If the price of any item (or items) which is largely the sole profit of the region, would plummet to nearly half the price. Although at first glance this would seem to be good news, since the poor can now afford these items, it is a serious calamity, for without this item being sold at the regular profit, the population will find themselves in a depression.

Whenever a fast day was instituted, there was a specific schedule. From after Shacharis until midday - the Beis Din would analyze the actions of the community, to determine if there was any area that could use strengthening. If they would find a problem, they would immediately fix it. From after midday until nightfall – in the first half the community would read from the Torah and Neviim, and in the second half the community would pray Mincha intensely.

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Halachos regarding Bikkurim

Bringing Bikkurim and not Reciting

Bikkurim are the first fruits (of the seven species), which ripen. One brought to them to the Bais Hamikdash, and part of the procedure was to recite a few verses of thanksgiving (mentioned in Parshas Ki Savo). However in certain instances, one would bring the bikkurim, but not recite the verses, since there are parts of those verses which do not apply to him.

1) Women, tumtum and androiganus – for they can’t recite “I am bringing the first fruits of the land which you gave me”, since only men received the land.
2) One who buys two trees within another’s field – since we are unsure if the two trees entitle him to the ground as well, therefore, he brings bikkurim since it may well be that he has land, however he does not recite, because maybe he does not own land.
3) One who separated bikkurim and then sold his land – since he does not own land at the time of the recital. The buyer does not have to separate bikkurim again, however if he did, then he too, brings but does not recite. This only applies if he separated again from the same species, but if it was from a different species, then he does recite (because in regard to this species it’s the first fruits).
4) One who buys a field for its fruits, meaning he’s only entitled to the fruits, not the land – since he has does not own land.
5) One who separated bikkurim and then became dangerously ill, the one who will be his heir, brings and does not recite – since the one that separates must ideally bring it (V’lakachta Uvasa).
6) One who separated and then sent a shliach, even if the shliach dies and he himself ends up bringing it, he does not recite – since the one who separates it is supposed to bring it.
7) One who separated and then lost it before he reached Har Habayis, reseparates and does not recite – since it’s not the first fruits.
8) One who brought bikkurim to the Azarah, and then it became tamei, does not recite.
9) One who brought bikkurim twice, the second time he does not recite, even if it’s the first fruits of a different species.
10) One who brought bikkurim from Sukos to Chanukah, does not recite.

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